Here is a recap of Woollard v. Gallagher, 13-42, petition for certiorari:

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jul 9 2013 Petition for a writ of certiorari filed. (Response due August 12, 2013)
Jul 9 2013 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners.
Aug 6 2013 Order extending time to file response to petition to and including September 9, 2013.
Aug 12 2013 Brief amicus curiae of Cato Institute filed.
Aug 12 2013 Brief amici curiae of Gun Owners Foundation, et al. filed.
Aug 12 2013 Brief amicus curiae of The American Civil Rights Union filed.
Aug 12 2013 Brief amicus curiae of National Rifle Association, Inc. filed.
Aug 12 2013 Brief amicus curiae of Center for Constitutional Jurisprudence filed.
Aug 12 2013 Brief amicus curiae of Academics for the Second Amendment filed.

The petition is here: http://www.calguns.net/calgunforum/attachment.php?attachmentid=256774&d=1376356453

The brief from the CATO Institute is here: http://object.cato.org/sites/cato.org/files/pubs/pdf/woollard_filed_brief.pdf

The brief from Gun Owners Foundation is here: http://www.gunowners.com/Woollard.v.Gallagher.AmicusBrief.pdf

The brief from The American Civil Rights Union is here: http://theacru.org/No.13-42_Amicus_Woolard_v_Gallagher_081213.pdf

Paul Clement has provided the NRA brief and is attached. David Hardy provided the brief for the Academics for the Second Amendment, and is also attached.

I hope to have the remaining brief, shortly.

El Toro

09-04-2013, 4:29 PM

Wow that amicus brief by the Academics in Support of Woolard is excellent historical reading! That doc should be a sticky somewhere.

bruss01

09-04-2013, 4:30 PM

Sorry, the issue at stake, in a nutshell?

Librarian

09-04-2013, 4:37 PM

Sorry, the issue at stake, in a nutshell?

From the cert petition QUESTION PRESENTED
This Court has held that the Second Amendment
“guarantee[s] the individual right to possess and
carry weapons in case of confrontation.” District of
Columbia v. Heller, 554 U.S. 570, 592 (2008). Maryland
generally prohibits the carrying of handguns for
self-defense absent a permit, issued only to individuals
who first prove a “good and substantial reason” for
doing so. Md. Code Ann., Pub. Safety § 3-506(a)(5)(ii).

The question presented is:
Whether state officials violate the Second
Amendment by requiring that individuals wishing to
exercise their right to carry a handgun for selfdefense
first prove a “good and substantial reason” for
doing so. That is, do we need a state-approved 'special' reason before we can exercise a right?

This thread, about the Woollard case fits, into #2 (it qualifies as 2nd A litigation). But many will think it also belongs here in #3, because they think it qualifies as national 2nd A legal discussion. They are not distinguishing between litigation and legal.

Wow that amicus brief by the Academics in Support of Woolard is excellent historical reading! That doc should be a sticky somewhere.

The historical analysis is just as I've been saying all along.

Here's hoping we take the hint.

The Raisuli

Al Norris

09-05-2013, 7:42 PM

MODERATORS/ADMIN: We have a problem.

We have 3 new forums:

1) California 2nd Amend. Political Discussion & Activism

2) 2nd Amend. Litigation Updates & Legal Discussion

3) National 2nd Amend. Political & Legal Discussion

This thread, about the Woollard case fits, into #2 (it qualifies as 2nd A litigation). But many will think it also belongs here in #3, because they think it qualifies as national 2nd A legal discussion. They are not distinguishing between litigation and legal.

3) National 2nd Amend. Political & Legal Discussion
Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

While there appears to be some overlap between #1 and #2 above, as you can see, by what I've highlighted, any discussion of a national case goes here. Woollard is not a CA case. It is a national case that if granted cert, could very well affect CA, but is not a CA litigated case.

Further, I had already PM'd 2 of the staff about their intentions and linked the older (but still open) Woollard thread (as I had these updates in mind). It didn't get moved, so I felt free in opening a new thread on the petition for cert. As far as it goes, I'm perfectly fine with the staff moving the other thread and merging this thread with the older one.

Frito Bandido

09-05-2013, 8:15 PM

I rather enjoy Cato Institute's brief. :)

Seems like a slam dunk, honestly.

thesav

09-06-2013, 10:40 PM

So after reading all the briefs, I must admit that I do not read chicken bones or tea leaves that well. What are the chances the SCOTUS accepts this case?
I know, I Know....Two Weeks...Tere Hanges...
I admit I have only recently begun watching the courts, so forgive my idiocy.
Does this have a good shot is all I'm asking.

press1280

09-07-2013, 4:01 AM

So after reading all the briefs, I must admit that I do not read chicken bones or tea leaves that well. What are the chances the SCOTUS accepts this case?
I know, I Know....Two Weeks...Tere Hanges...
I admit I have only recently begun watching the courts, so forgive my idiocy.
Does this have a good shot is all I'm asking.

Honest answer is that we don't know. 4 justices need to vote to hear the case. They passed on the NY case a few months ago, but it's not known if 3 voted to hear it or none. This case is very similiar, except the NY case involved a CCW permit, while this permit is a general OC/CCW permit. Another factor is the Peruta/Richards case is still waiting for an opinion in the 9th Circuit;perhaps SCOTUS wants all cases resolved before they grant cert.
I'll say it has a decent shot, but not a great one.
We should know probably at the first or second SCOTUS conference, late September/early October.

ziegenbock

09-07-2013, 9:46 AM

Honest answer is that we don't know. 4 justices need to vote to hear the case. They passed on the NY case a few months ago, but it's not known if 3 voted to hear it or none. This case is very similiar, except the NY case involved a CCW permit, while this permit is a general OC/CCW permit. Another factor is the Peruta/Richards case is still waiting for an opinion in the 9th Circuit;perhaps SCOTUS wants all cases resolved before they grant cert.
I'll say it has a decent shot, but not a great one.
We should know probably at the first or second SCOTUS conference, late September/early October.

Very good Press..took out the only part that wasn't needed.

speedrrracer

09-07-2013, 7:40 PM

I know we technically need 4 to vote to hear it, but that's not enough -- we need 5 to vote our way.

If we aren't going to win, we're better off not getting cert.

Apocalypsenerd

09-09-2013, 10:42 AM

So do we find out today about the cert petition?

Al Norris

09-09-2013, 5:54 PM

What should be happening is that MD files their response.

Nothing at SCOTUS, yet.

Paladin

09-09-2013, 6:25 PM

Actually, we don't. Not when you add the descriptors to the Forum titles:

3) National 2nd Amend. Political & Legal Discussion
Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

While there appears to be some overlap between #1 and #2 above, as you can see, by what I've highlighted, any discussion of a national case goes here. Woollard is not a CA case. It is a national case that if granted cert, could very well affect CA, but is not a CA litigated case.

Further, I had already PM'd 2 of the staff about their intentions and linked the older (but still open) Woollard thread (as I had these updates in mind). It didn't get moved, so I felt free in opening a new thread on the petition for cert. As far as it goes, I'm perfectly fine with the staff moving the other thread and merging this thread with the older one.I can see it that way too: 1 for CA politics, 1 for CA litigation and 1 for national politics & litigation. If so, then Kes needs to add "California", "Calif." or at least "CA" to the beginning of the TITLE for the 2nd forum.

Unfortunately, that means that many of the important cases for CA will be found amongst the national politics threads, rather than in a dedicated 2nd A litigation forum (what I had thought).

Al Norris

09-09-2013, 6:55 PM

And here I was going to make the counter argument that some, if not many, of the CA cases were actually national in scope. Enos? Anyone?

Apocalypsenerd

09-09-2013, 8:21 PM

So when can we expect an answer?

Paladin

09-09-2013, 8:25 PM

And here I was going to make the counter argument that some, if not many, of the CA cases were actually national in scope. Enos? Anyone?That's the way I thought CGN meant it and the way that I think is better: have a separate forum for ALL 2nd A RKBA litigation: all state court and federal court cases. That would separate them out from all the politics and news articles, which would be an improvement since cases move so slowly compared to politics.

The only problem would be state court litigation that is not in CA would also be in that forum. But even there, as we may see w/the Pantano case in NJ, what was a state court case could end up in front of SCOTUS and affect us.

monk

09-09-2013, 8:35 PM

And here I was going to make the counter argument that some, if not many, of the CA cases were actually national in scope. Enos? Anyone?

Many start off as state cases and move on to become federal.

Apocalypsenerd

09-09-2013, 11:50 PM

If they petitioned today, when would we get an answer?

press1280

09-10-2013, 3:01 AM

They did petition already

Apocalypsenerd

09-10-2013, 8:46 AM

OK, so when is the last day that they would decide?

M. D. Van Norman

09-10-2013, 11:31 AM

We will probably know whether they accept the case by the first week of October, though I believe the decision could possibly come later.

readysetgo

09-10-2013, 12:05 PM

From the Cato Inst. brief (Summary of Argument, Page 3, 1st full paragraph):
And some possession and carrying that is within the scope of the arms right will be validly subject to restrictions, akin to “time, place, and manner” rules, which are justified by a governmental interest that is distinct from suppressing “too much” exercise of a constitutional right. As Petitioners and the District Court below conceded, such restrictions may include licensing.

Can someone unravel that in BOLD? I'm not understanding what that means. "Suppressing too much exercise" is distinct from "valid restrictions"? Suppressing too much exercise = BAD?

hardlyworking

09-10-2013, 12:36 PM

Its in the original case, I think, and the Cato and NRA briefs:

Essentially two courts "took the government at its word" that restricting 2A was a legit reason to restrict 2A...

I see you scratching your head from here. That's the crux of the problem, it makes no sense at all. What Cato is saying is that by throwing out redonkulous logic like the above there is still plenty of room to regulate 2A (Felons/Mentally Incompetent/Riding in a limo with POTUS) while tossing that boolcrape argument from the state out on its ear

This thread, about the Woollard case fits, into #2 (it qualifies as 2nd A litigation). But many will think it also belongs here in #3, because they think it qualifies as national 2nd A legal discussion. They are not distinguishing between litigation and legal.

Beginning in the early 19th century, State legislatures
(almost entirely in the South) began to enact
bans on concealed carry of weapons. Kentucky enacted
the first such law in 1813,

Hmmm.....interesting.....will hafta remember that the next time some KY'er starts talking smack about shall issue and screwed up CA gun laws. :D

Kharn

09-10-2013, 2:18 PM

Kris Abbott, Woollard's attacker and son-in-law, attacked his parents and wife last night with a metal pipe, barricaded himself in the house and ultimately killed himself with a rifle. Yesterday was also the day the state's response to Woollard's petition for cert was due to the Supreme Court.

I'm not a tinfoiler, but talk about a coincidence.

Story from the Baltimore Sun: Report (http://www.baltimoresun.com/news/maryland/baltimore-county/north-county/bs-md-co-barricade-20130910,0,1762253.story)

Untamed1972

09-10-2013, 2:35 PM

Kris Abbott, Woollard's attacker and son-in-law, attacked his parents and wife last night with a metal pipe, barricaded himself in the house and ultimately killed himself with a rifle. Yesterday was also the day the state's response to Woollard's petition for cert was due to the Supreme Court.

I'm not a tinfoiler, but talk about a coincidence.

Story from the Baltimore Sun: Report (http://www.baltimoresun.com/news/maryland/baltimore-county/north-county/bs-md-co-barricade-20130910,0,1762253.story)

:eek:

Now the state will just say: "See, no you really dont have a need anymore because the guy you were afraid of is dead." :rolleyes:

randomBytes

09-10-2013, 2:38 PM

A pity the douche off'd himself, now the state will be able to say "See no more threat".

Morning

09-10-2013, 2:58 PM

A pity the douche off'd himself, now the state will be able to say "See no more threat".

Can they really use that as a excuse? i thought the fundamental problem is the good and substantial reason required to get a concealed carry permit, you know the greater good utilitarianism kind of thing. Does it really if Woollard's attacker is dead? This could be good for the million of others in states like MD,NJ,CA, etc.

press1280

09-10-2013, 3:00 PM

Kris Abbott, Woollard's attacker and son-in-law, attacked his parents and wife last night with a metal pipe, barricaded himself in the house and ultimately killed himself with a rifle. Yesterday was also the day the state's response to Woollard's petition for cert was due to the Supreme Court.

I'm not a tinfoiler, but talk about a coincidence.

Story from the Baltimore Sun: Report (http://www.baltimoresun.com/news/maryland/baltimore-county/north-county/bs-md-co-barricade-20130910,0,1762253.story)

Yea MD probably will try to pull that, but our side could easily point out that MD didn't issue renew Woollard's permit even though it's clear Abbott was still dangerous and a threat to himself(fatally) and others(own parents).

Paladin

09-11-2013, 11:55 AM

What should be happening is that MD files their response.

Nothing at SCOTUS, yet.
:toetap05: :D

Kharn

09-11-2013, 1:19 PM

The state filed a response in opposition to cert, trying to find an electronic copy.

Al Norris

09-11-2013, 2:41 PM

Meanwhile, the SCOTUS docket is now showing that the respondents have filed their opposition brief. This means that Gura will now have a chance to make his reply brief, and you can bet that this news story will play a small part in that reply (what happened is only tangentially relevant).

Interestingly enough, the first report was by an ABC local station that didn't get the connection: Man assaults family, commits suicide in Hampstead (http://www.abc2news.com/dpp/news/crime_checker/baltimore_county_crime/man-assaults-family-commits-suicide-in-hampstead)

Kharn

09-11-2013, 3:11 PM

Alan Gura was kind enough to forward both the state's response and the SAF amicus.

speedrrracer

09-11-2013, 3:16 PM

many thanks, kharn

Chatterbox

09-11-2013, 4:46 PM

How does this not make Woollard's case moot?

BHLiu11

09-11-2013, 5:03 PM

Good reading!

stix213

09-11-2013, 6:01 PM

From the Cato Inst. brief (Summary of Argument, Page 3, 1st full paragraph):

Can someone unravel that in BOLD? I'm not understanding what that means. "Suppressing too much exercise" is distinct from "valid restrictions"? Suppressing too much exercise = BAD?

Stopping the exercise of a right cannot be a valid government interest supporting restrictions on the right. The government cannot say they are banning carry because not allowing a right to bear arms is in the government's interest.

Kharn

09-11-2013, 6:34 PM

How does this not make Woollard's case moot?Because Woollard's claim is that Maryland law should not be allowed to require a "good and substantial reason", not that his reason was inadequate. The actions of his attacker just put a bunch of egg on MD's face, showing that they can't assure a violent felon has changed their stripes, even 11 years later.

Al Norris

09-11-2013, 9:19 PM

Kharn? Thanks for procuring those briefs.

Sakiri

09-12-2013, 12:29 AM

All I can hear from MD is "Well, he didn't report any more threats so there was no more need for him to have a permit".

Because the threat magically goes away.

Why the hell are we requiring a threat in the first place? Living on this planet is a threat to one's life and safety for crying out loud.

krucam

09-24-2013, 12:46 PM

The 3rd and final (excluding Amici) brief in the Petition phase (SAF's Reply Brief) in Woollard is attached....

hardlyworking

09-24-2013, 1:21 PM

Good lord - I just read the thread title "Woollard v. Gallagher Cert Petition Filed" as "Woollard v. Gallagher Cert Petition Failed" and dropped an F-bomb at work... So happy to have that just be a mis-reading!

LoneYote

09-24-2013, 2:03 PM

Good read! Makes me smile :):):)

stix213

09-25-2013, 6:19 PM

The 3rd and final (excluding Amici) brief in the Petition phase (SAF's Reply Brief) in Woollard is attached....

Leave it to Gura to mention nude dancing in a 2A brief lol

Mulay El Raisuli

09-26-2013, 8:04 AM

Leave it to Gura to mention nude dancing in a 2A brief lol

The man's got style.

The Raisuli

hardlyworking

09-26-2013, 8:44 AM

Leave it to Gura to mention nude dancing in a 2A brief lol

Gota get buy-in for the lib justices!

Big Ben

09-26-2013, 9:24 AM

Here's hoping for cert!

naeco81

09-26-2013, 11:32 AM

Gura is the man. That's a great brief thanks for posting it.

dawgcasa

09-26-2013, 7:35 PM

When is SCOTUS scheduled to conclude their consideration of cases for this years judicial cycle? (Hopefully factual answers other than "two weeks" :) )

monk

09-26-2013, 8:36 PM

Leave it to Gura to mention nude dancing in a 2A brief lol

We'll see if SCOTUS has the same sense of humor he has.

Paladin

09-26-2013, 9:52 PM

When is SCOTUS scheduled to conclude their consideration of cases for this years judicial cycle? (Hopefully factual answers other than "two weeks" :) )
IIRC:

* there's no set cut off
* they're unlikely to take a "big" case (e.g., "bear" arms in public), after Feb, probably not even after Jan, to give them lots of time to thoroughly go over all the issues and implications, thus
* if they take a "big" case after Feb (unless they've got a really light load), they'll probably decide it the following term

Bottom line: we're hoping they'll decided to take a Carry case (Woollard and/or another (Drake, Richards-Peruta) before the end of the year. After that, the odds go down and take a big dip after Feb. that one will be decided this term (i.e., before their summer recess after June 31).

mag360

09-26-2013, 10:00 PM

Great read. He will make them look silly at orals.

krucam

09-27-2013, 1:18 PM

We will likely know Woollard's fate on Tuesday, Oct 15th after the Oct 11th Conference that has been assigned.

There IS the possibility of Woollard being HELD, knowing there are other cases in the pipe. Mr Gura even hedges this possibility in the Reply Brief when he says:
This petition is already one of three pending
this term challenging the Second Amendment’s
virtual repeal via “intermediate scrutiny.” See
Schrader v. Holder, No. 12-1443 (filed June 11, 2013);
Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol,
Tobacco, Firearms & Explosives, No. 13-137 (filed
July 29, 2013). More are coming. Drake v. Filko, 2013
U.S. App. LEXIS 15635, 2013 WL 3927735 (3d Cir.
July 31, 2013); Kwong v. Bloomberg, 723 F.3d 160 (2d
Cir. 2013).
At least one of these cases should be heard, so
that the Court can instruct recalcitrant government
officials and courts that this particular right is, in
fact, “really worth insisting upon.” Heller, 554 U.S. at
634 (emphasis original). At a minimum, this case
should be held pending that consideration in other
cases.

M. D. Van Norman

09-27-2013, 1:45 PM

Just over two weeks from now … ;)

Mulay El Raisuli

09-28-2013, 7:12 AM

Just over two weeks from now … ;)

Ya just couldn't resist, could ya? :)

The Raisuli

M. D. Van Norman

09-28-2013, 3:08 PM

Nope, but at least I do it only when it’s actually relevant. :D

Kharn

09-28-2013, 4:19 PM

IIRC:

* there's no set cut off
* they're unlikely to take a "big" case (e.g., "bear" arms in public), after Feb, probably not even after Jan, to give them lots of time to thoroughly go over all the issues and implications, thus
* if they take a "big" case after Feb (unless they've got a really light load), they'll probably decide it the following term

Bottom line: we're hoping they'll decided to take a Carry case (Woollard and/or another (Drake, Richards-Peruta) before the end of the year. After that, the odds go down and take a big dip after Feb. that one will be decided this term (i.e., before their summer recess after June 31).FYI, Heller was granted cert on 20 Nov 2007 (after being relisted from the 9 Nov conference), argued on 18 March 2008, opinion released 26 June 2008. McDonald was granted cert on 30 Sept 2009, argued 2 March 2010, opinion released 28 June 2010.

We will know on 15 Oct if Woollard is denied (aka, we're waiting probably until next term to get any 2A ruling), likely being held to consider all possible 2A cases at a later date (or not given top billing for a 2A case this term), or granted (and thus being the headliner).

Mulay El Raisuli

09-29-2013, 4:10 PM

Nope, but at least I do it only when it’s actually relevant. :D

Touche!

The Raisuli

Paladin

09-29-2013, 7:13 PM

FYI, Heller was granted cert on 20 Nov 2007 (after being relisted from the 9 Nov conference), argued on 18 March 2008, opinion released 26 June 2008. McDonald was granted cert on 30 Sept 2009, argued 2 March 2010, opinion released 28 June 2010.
Thx Kharn, for providing the facts to support my assertion that "big" cases (important cases), are usually accepted early, before Feb, and usually before Jan.

Too many newbies think the Supremes wait until after orals to start working on the case, drafting & fleshing out their opinions, etc, when really orals are just the icing on the cake, or, to use multiple metaphors, maybe even just the cherry on top. Orals are often used by some justices to sway others, or to give the lawyers an opportunity to argue what a justice believes, even though it sounds like the justice is taking the opposite position (i.e., the justice is acting as devil's advocate to their own position). Often, orals are not even necessary: the justices have already made up their minds, settled on the arguments and conclusions.

Crom

10-01-2013, 4:35 PM

Good informative thread here. Fingers crossed the Supremes' take the case. One can hope.

Apocalypsenerd

10-01-2013, 11:21 PM

So the SCOTUS took Castleman. What are the chances it takes another 2A case as well? Is it possible it will use Castleman to suggest a scrutiny before talking about carry?

SilverBulletZ06

10-02-2013, 12:12 AM

Castleman isn't exactly a 2A case. Frankly, outside of Moore I have little hope in SCOTUS taking a carry case.

M. D. Van Norman

10-02-2013, 8:20 AM

Moore is already moot. Woollard and Drake are the major carry cases currently in play, though a couple more are lined up in the Ninth Circuit. ;)

penguin0123

10-02-2013, 2:10 PM

From Gura's brief, he asserts that the respondent's arguments are contradictory. Can you guys help me understand?

Respondents’ attempt to evade the obvious fact
that Maryland’s law implicates the right to bear arms
is incoherent. In one breath, Respondents declare
that “whether the Second Amendment applies to
conduct outside the home at all, or even whether
it applies to [carrying] handguns outside the home
for self-defense,” was not before the Court – only
“whether the Second Amendment is burdened by a
statute that” restricts the carrying of handguns for
self-defense outside the home. BIO 10-11.
In other words, whether the right exists and if so,
how it may be regulated, was not at issue. The court
considered only the question of whether the law
burdening the right is unconstitutional. Respondents’
argument contradicts itself.

press1280

10-02-2013, 2:53 PM

From Gura's brief, he asserts that the respondent's arguments are contradictory. Can you guys help me understand?

Each scenario laid out seems like it's the same, MD is simply parsing words. The 4th circuit's opinion is also pretty contradictory itself, desperately trying to duck the whole in/out of the home question so they don't create a split and get SCOTUS involved.

ddestruel

10-02-2013, 10:22 PM

Each scenario laid out seems like it's the same, MD is simply parsing words. The 4th circuit's opinion is also pretty contradictory itself, desperately trying to duck the whole in/out of the home question so they don't create a split and get SCOTUS involved.

And IIRC and I’m not confusing things The the 7th circuit went on and by name skewered the 4th’s reasoning brow beating IL with the lack of logic in the 4th’s ruling……

If the 4th was trying to avert a split and SCOTUS getting involved the 7th went and picked the fight none the less and used the ruling to point out the logical flaws

The fact that the 7th cited the issues in the 4ths ruling makes this a clear cut split that begs for SCOTUS to intervene

Obviously being a long day and its been awhile since reading the 7th’s ruling i could be wrong here but i seem to strongly recall the woo lard case being the one singled out by the 7th very pointedly

Al Norris

10-03-2013, 3:57 PM

I think you mean the 7th cited with disfavor the 2nd's opinion in Kachalsky.

Kharn

10-04-2013, 5:30 AM

In a very good sign for our side, Woollard was Petition of the Day (http://www.scotusblog.com/2013/10/petition-of-the-day-485/) on SCOTUSBlog for 3 October.

ckprax

10-04-2013, 9:52 AM

A little information on the Petition of the Day

Petition of the day, explained

The “Petition of the day” posts feature petitions that are likely to appear on our “Petitions to watch” list when they are scheduled for consideration by the Justices. “Petitions of the day” are those that Tom has identified as raising one or more questions that have a reasonable chance of being granted in an appropriate case. We generally do not attempt to evaluate whether the case presents an appropriate vehicle to decide the question, which is a critical consideration in determining whether certiorari will be granted.

press1280

10-07-2013, 2:48 AM

Kachalsky was also a petition of the day.
It means Woollard has a better shot than most of the other petitions. Still, the court only grants something like 1 percent of all petitions meaning it's always difficult no matter what.

ddestruel

10-07-2013, 9:00 AM

I think you mean the 7th cited with disfavor the 2nd's opinion in Kachalsky.

You're right. I knew it was one of the two but didn't have an opinion to go and read to verify. Lol.

Norsemen308

10-07-2013, 5:46 PM

I am no law professor but did this case get sidelined? looking at whats on the docket for the SCOTUS I do not see this case, which I know a lot of us were pulling for.

krucam

10-07-2013, 5:59 PM

I am no law professor but did this case get sidelined? looking at whats on the docket for the SCOTUS I do not see this case, which I know a lot of us were pulling for.

Respondents’ argument signals acceptance that
the essential Drake-Moore/Aguilar split may soon
come before this Court, if it is not already presented
here. Indeed, following an 8-4 denial of rehearing
en banc, Drake is headed this way soon. Considering
the cases’ similarities, at a minimum, this Court
might as well grant this petition now, or at least hold
this petition pending Drake’s ultimate outcome.

So, if cert in Woollard is denied, keep in mind Drake. Cert petition is due 11/27/2013 under SCOTUS rules.

Paladin

10-09-2013, 9:38 PM

From the Reply:

Respondents’ argument signals acceptance that
the essential Drake-Moore/Aguilar split may soon
come before this Court, if it is not already presented
here. Indeed, following an 8-4 denial of rehearing
en banc, Drake is headed this way soon. Considering
the cases’ similarities, at a minimum, this Court
might as well grant this petition now, or at least hold
this petition pending Drake’s ultimate outcome.

So, if cert in Woollard is denied, keep in mind Drake. Cert petition is due 11/27/2013 under SCOTUS rules.I wonder if SCOTUS merely holding the petition for Woollard would influence CA9 in when they'll decide Richards-Peruta? Motivate them to drag their heels to see if SCOTUS takes Woollard or Drake, so that CA9 won't waste their time deciding the issue, just to have to change it after the Supremes speak? Or, motivate them to get the opinion out so that they can influence SCOTUS in their decision?

press1280

10-10-2013, 12:27 AM

I wonder if SCOTUS merely holding the petition for Woollard would influence CA9 in when they'll decide Richards-Peruta? Motivate them to drag their heels to see if SCOTUS takes Woollard or Drake, so that CA9 won't waste their time deciding the issue, just to have to change it after the Supremes speak? Or, motivate them to get the opinion out so that they can influence SCOTUS in their decision?

I'm curious about that too but unfortunately only that panel would know. Maybe another Federal judge has previously written or said that they'll deliberately drag a case depending on a cert grant?

In any event Woollard and Drake are so similiar in the actual law at hand (carry licenses are both called "permit to carry a handgun" and don't distinguish between OC/CC) that I'd hope Woollard would at least be held for Drake.

ddestruel

10-10-2013, 9:07 AM

is it conceivable that they would accept woollard and then accept drake and merge the two due to their strong similarities?

M. D. Van Norman

10-10-2013, 9:48 AM

So, if cert in Woollard is denied, keep in mind Drake. Cert petition is due 11/27/2013 under SCOTUS rules.

But why punt? Just execute the play already! ;)

Mulay El Raisuli

10-10-2013, 10:16 AM

is it conceivable that they would accept woollard and then accept drake and merge the two due to their strong similarities?

They have done so before. Brown v Board of Education was actually 5 cases (Brown itself, Briggs v. Elliott (filed in South Carolina), Davis v. County School Board of Prince Edward County (filed in Virginia), Gebhart v. Belton (filed in Delaware), and Bolling v. Sharpe (filed in Washington D.C.) rolled into one.

Same with Miranda v Arizona, which also included three other cases: Westover v. United States, Vignera v. New York, and California v. Stewart.

INAL, but I suppose that if the similarities are strong enough, there's an excellent chance of consolidation with Drake.

The Raisuli

ddestruel

10-11-2013, 7:47 AM

They have done so before. Brown v Board of Education was actually 5 cases (Brown itself, Briggs v. Elliott (filed in South Carolina), Davis v. County School Board of Prince Edward County (filed in Virginia), Gebhart v. Belton (filed in Delaware), and Bolling v. Sharpe (filed in Washington D.C.) rolled into one.

Same with Miranda v Arizona, which also included three other cases: Westover v. United States, Vignera v. New York, and California v. Stewart.

INAL, but I suppose that if the similarities are strong enough, there's an excellent chance of consolidation with Drake.

The Raisuli

is scotus blog going to cover at all or do we have to wait until this weekend for orals?

Paladin

10-11-2013, 9:12 AM

is scotus blog going to cover at all or do we have to wait until this weekend for orals?
We're waiting for SCOTUS to announce, probably on Tues, their decision re. taking (granting cert.), or not, the Woollard case.

Only if they take it will they schedule oral arguments for much later.

AFAIK, these conferences, like today, are private and transcripts or recordings are not (made?) published.

IOW, nothing to do but wait until Tues (since Mon is fed holiday). I feel like a kid before Christmas: will I get a present or a piece of coal in my stocking? :toetap05:

press1280

10-12-2013, 4:27 AM

We're waiting for SCOTUS to announce, probably on Tues, their decision re. taking (granting cert.), or not, the Woollard case.

Only if they take it will they schedule oral arguments for much later.

AFAIK, these conferences, like today, are private and transcripts or recordings are not (made?) published.

IOW, nothing to do but wait until Tues (since Mon is fed holiday). I feel like a kid before Christmas: will I get a present or a piece of coal in my stocking? :toetap05:

Yea, I've never seen anything about how the justices vote on individual cert petitions. It certainly would be interesting if they did.
By my very unofficial calculations if they grant cert in Woollard on Tuesday, oral arguments should be in February. Keeping fingers crossed.

Our only hope left in California is from SCOTUS.IMHO, the mistake CGN & CGF made post-Heller was to put all our Carry "eggs" in the (primarily federal) judicial "basket." We should not have done that. In May 2010, just pre-McDonald, Gene was predicting that we'd have Shall Issue or its judicial equivalent for most of CA by about Sp 2011 and for all of CA by about Su 2013.
http://www.calguns.net/calgunforum/showthread.php?p=4352431#post4352431 IF WE WIN Woollard, the equivalents would be Sp 2014 and Su 2016.... :mad:

In hindsight, we were judicially naive re. the level of opposition to the 2nd A in the federal judiciary (imitation Ben Stein in Ferris Buehler's Day Off: "Palmer? Palmer?")

The needless drama and distraction caused by the well-meaning, but politically naive UOC folks didn't help us either.

What we NEGLECTED was to continue the "long march" through local politics. We should have organized to get 1 out of every 20 adults (5%), permits in the 35 counties that readily issue CCWs. Once you have 5% of the adult pop. (think voters), with a vested interest in who's sheriff, you'll NEVER get another anti sheriff. These folks will also reduce local violent crime rates AND be more optimistic and involved in who they send to Sacto. in Assembly and State Senate races. (That could have helped stop the anti bills that the legislature passed this year so that we wouldn't have had to rely totally upon vetoes by Gov. Brown.) That boring, low-level, low-drama grunt work flies under the MSM radar but is effective. Instead we were counting on a federal judicial knockout punch....

Instead (by my reading of various postings, not exhaustive review of GC statements), we had some counties liberalize issuance (Solano), other liberalize and then tightened them back up (San Mateo, San Benito), and others tighten further (Ventura). IOW, other than Sac. Co., our ability to carry is being blown back and forth by the local political winds.

If SCOTUS doesn't take Woollard tomorrow, that means the odds are greater they will not take Drake. Then we're left hoping for CA9 and Richards-Peruta, or SCOTUS and Richard-Peruta in a year, or SCOTUS and Palmer in two years.

Why waste more time waiting when we can be doing something now??? Sure, it ain't "sexy" and doesn't win the entire state at once. But it gets more people CCWs and ensures that more counties will stay in the hands of "virtual Shall Issue" sheriffs.

readysetgo

10-14-2013, 9:26 AM

IMHO, the mistake CGN & CGF made post-Heller was to put all our Carry "eggs" in the (primarily federal) judicial "basket." We should not have done that. In May 2010, just pre-McDonald, Gene was predicting that we'd have Shall Issue or its judicial equivalent for most of CA by about Sp 2011 and for all of CA by about Su 2013.
http://www.calguns.net/calgunforum/showthread.php?p=4352431#post4352431 IF WE WIN Woollard, the equivalents would be Sp 2014 and Su 2016.... :mad:

In hindsight, we were judicially naive re. the level of opposition to the 2nd A in the federal judiciary (imitation Ben Stein in Ferris Buehler's Day Off: "Palmer? Palmer?")

The needless drama and distraction caused by the well-meaning, but politically naive UOC folks didn't help us either.

What we NEGLECTED was to continue the "long march" through local politics. We should have organized to get 1 out of every 20 adults (5%), permits in the 35 counties that readily issue CCWs. Once you have 5% of the adult pop. (think voters), with a vested interest in who's sheriff, you'll NEVER get another anti sheriff. These folks will also reduce local violent crime rates AND be more optimistic and involved in who they send to Sacto. in Assembly and State Senate races. (That could have helped stop the anti bills that the legislature passed this year so that we wouldn't have had to rely totally upon vetoes by Gov. Brown.) That boring, low-level, low-drama grunt work flies under the MSM radar but is effective. Instead we were counting on a federal judicial knockout punch....

Instead (by my reading of various postings, not exhaustive review of GC statements), we had some counties liberalize issuance (Solano), other liberalize and then tightened them back up (San Mateo, San Benito), and others tighten further (Ventura). IOW, other than Sac. Co., our ability to carry is being blown back and forth by the local political winds.

If SCOTUS doesn't take Woollard tomorrow, that means the odds are greater they will not take Drake. Then we're left hoping for CA9 and Richards-Peruta, or SCOTUS and Richard-Peruta in a year, or SCOTUS and Palmer in two years.

Why waste more time waiting when we can be doing something now??? Sure, it ain't "sexy" and doesn't win the entire state at once. But it gets more people CCWs and ensures that more counties will stay in the hands of "virtual Shall Issue" sheriffs.

These insights are super smart and I subscribe to them. We DO have an election year 2014, so we should IMO, put as much pressure as we can muster on the sheriff races (and of course legislature but particulary the sheriffs). Off topic I guess but had to respond to paladin here. Also, there are two special elections coming up and we have a solid pro 2a candidate to help: HELP Elect Pro-2A Susan Shelley For Assembly (http://www.calguns.net/calgunforum/showthread.php?t=829068) Meantime, here's to hoping SCOTUS takes Woolard! :cheers2:

sholling

10-14-2013, 10:40 AM

IMHO, the mistake CGN & CGF made post-Heller was to put all our Carry "eggs" in the (primarily federal) judicial "basket." We should not have done that. In May 2010, just pre-McDonald, Gene was predicting that we'd have Shall Issue or its judicial equivalent for most of CA by about Sp 2011 and for all of CA by about Su 2013.
http://www.calguns.net/calgunforum/showthread.php?p=4352431#post4352431 IF WE WIN Woollard, the equivalents would be Sp 2014 and Su 2016.... :mad:
I suspect that failure of his rosy predictions to come true is the main reason that we don't hear much from Gene anymore and it's a shame. Let me be clear that this is NOT meant as an attack on Gene because frankly at the time I was in 100% agreement with his rosy prognostications and his faith in our "Right People". And I was just as over optimistic for our chances as he was and was just as over optimistic in my misplaced faith in our "Right People".

In hindsight, we were judicially naive re. the level of opposition to the 2nd A in the federal judiciary
In hindsight it was incredibly naive not to see this coming.

The needless drama and distraction caused by the well-meaning, but politically naive UOC folks didn't help us either.
Agreed. Instead of frightening soccer moms at Starbucks they should have hired their own right people to challenge the ban on loaded open carry. Of course our "Right People" would have filed Amicus briefs against them and in support of the government because the only direction our "Right People" will allow is 'shall-issue licensed concealed carry or bust'. The better no carry than unlicensed loaded open carry school of thought.

What we NEGLECTED was to continue the "long march" through local politics. We should have organized to get 1 out of every 20 adults (5%), permits in the 35 counties that readily issue CCWs. Once you have 5% of the adult pop. (think voters), with a vested interest in who's sheriff, you'll NEVER get another anti sheriff. These folks will also reduce local violent crime rates AND be more optimistic and involved in who they send to Sacto. in Assembly and State Senate races. (That could have helped stop the anti bills that the legislature passed this year so that we wouldn't have had to rely totally upon vetoes by Gov. Brown.) That boring, low-level, low-drama grunt work flies under the MSM radar but is effective. Instead we were counting on a federal judicial knockout punch....

Instead (by my reading of various postings, not exhaustive review of GC statements), we had some counties liberalize issuance (Solano), other liberalize and then tightened them back up (San Mateo, San Benito), and others tighten further (Ventura). IOW, other than Sac. Co., our ability to carry is being blown back and forth by the local political winds.

If SCOTUS doesn't take Woollard tomorrow, that means the odds are greater they will not take Drake. Then we're left hoping for CA9 and Richards-Peruta, or SCOTUS and Richard-Peruta in a year, or SCOTUS and Palmer in two years.

Why waste more time waiting when we can be doing something now??? Sure, it ain't "sexy" and doesn't win the entire state at once. But it gets more people CCWs and ensures that more counties will stay in the hands of "virtual Shall Issue" sheriffs.
This should never have been allowed to become an all of our eggs in one basket campaign. It should have been a multi-pronged advance with shall-issue concealed carry suits, unlicensed open/concealed (states' choice) carry suits, and an ongoing political campaign to find, cultivate, and support the campaigns of uncompromisingly pro 2nd Amendment politicians and sheriffs. And yes we should have been working to get guns and carry permits into as many hands as possible from the very beginning.

Paladin

10-14-2013, 10:55 AM

I agree: my post was NOT to bash Gene or ANY of the CGF/CGN leaders. I only provided that link: to show I was not making things up; and to show how far "off schedule" things have gotten (e.g., most law-abiding CAians should have been able to CCW for 2.5 years by now....).

What I'm saying is we have something CGNers can be doing NOW that we're not doing. If current CGN/CGF leadership is too swamped to take this on, perhaps they will bring on other leaders to head this up. (BTW that is NOT me! I'm a "visionary" leader who can see strategic openings and give advice, but am TERRIBLE at leading "Joe Averages" and the logistics necessary to execute such a program. I just try to contribute to the fight where I have the ability.)

What I forgot to mention is the EXCELLENT work Brandon/wildhawker and Gray have (had?) been doing w/the CGF Carry License Sunshine and Compliance Initiative (http://www.calgunsfoundation.org/resources/carry-license-sunshine-and-compliance-initiative/ ). There has been a STEADY INCREASE in # of CCWs in most counties, and I'd guess a lot of that has to do w/their work in cleaning up and simplifying the application process (i.e., slowly getting sheriffs' CCW policies to comply w/state law).

As the Sunshine Initiative lowers the hurdles to getting CCWs in a county, we need an in-county organization for all 58 counties of people "get out the applicants" just as a political parties have "get out the votes" local organizations. But we do NOT need to wait until a local sheriff is 100% in conformity. For example, if he requires 3 letters of recommendation from 3 non-related people in the county: so what? Many of us would be willing to go along w/that now and get a CCW now rather than wait for 100% compliance 2 years from now. Let the applicant decide how much illegality he's willing to put up with while waiting for the courts to fix things. That will also help the sheriff not be swamped w/applicants all at once.

But I haven't heard any news re the Sunshine initiative's work in the past year or so (e.g., no "Time to apply!" announcements at new counties). Does anyone know if it is still in operation? Still making progress? If so, what are the latest news or "wins"? (I started a thread in CA Politics/political activism to ask for Sunshine update here: http://www.calguns.net/calgunforum/showthread.php?p=12536356#post12536356)

M. D. Van Norman

10-14-2013, 1:25 PM

What we NEGLECTED was to continue the “long march” through local politics.…

I agree with you about judicial naivete, but the only long march going on is that of the types of voters you need leaving California. There will be no political solution for a couple generations at least.

occbrian

10-14-2013, 1:31 PM

Welcome, rookie...

:seeya:

haha... krucam gets around too, I see!

I'm doubling up... here AND at Maryland Shooters.com :D

Welcome occbrian !

You and me both, lol.

Ya... coming over from mdshooters. I'm hoping one coast can learn from the other and vice versa.

taperxz

10-14-2013, 1:47 PM

I agree: my post was NOT to bash Gene or ANY of the CGF/CGN leaders. I only provided that link: to show I was not making things up; and to show how far "off schedule" things have gotten (e.g., most law-abiding CAians should have been able to CCW for 2.5 years by now....).

What I'm saying is we have something CGNers can be doing NOW that we're not doing. If current CGN/CGF leadership is too swamped to take this on, perhaps they will bring on other leaders to head this up. (BTW that is NOT me! I'm a "visionary" leader who can see strategic openings and give advice, but am TERRIBLE at leading "Joe Averages" and the logistics necessary to execute such a program. I just try to contribute to the fight where I have the ability.)

What I forgot to mention is the EXCELLENT work Brandon/wildhawker and Gray have (had?) been doing w/the CGF Carry License Sunshine and Compliance Initiative (http://www.calgunsfoundation.org/resources/carry-license-sunshine-and-compliance-initiative/ ). There has been a STEADY INCREASE in # of CCWs in most counties, and I'd guess a lot of that has to do w/their work in cleaning up and simplifying the application process (i.e., slowly getting sheriffs' CCW policies to comply w/state law).

As the Sunshine Initiative lowers the hurdles to getting CCWs in a county, we need an in-county organization for all 58 counties of people "get out the applicants" just as a political parties have "get out the votes" local organizations. But we do NOT need to wait until a local sheriff is 100% in conformity. For example, if he requires 3 letters of recommendation from 3 non-related people in the county: so what? Many of us would be willing to go along w/that now and get a CCW now rather than wait for 100% compliance 2 years from now. Let the applicant decide how much illegality he's willing to put up with while waiting for the courts to fix things. That will also help the sheriff not be swamped w/applicants all at once.

But I haven't heard any news re the Sunshine initiative's work in the past year or so (e.g., no "Time to apply!" announcements at new counties). Does anyone know if it is still in operation? Still making progress? If so, what are the latest news or "wins"? (I started a thread in CA Politics/political activism to ask for Sunshine update here: http://www.calguns.net/calgunforum/showthread.php?p=12536356#post12536356)

This idea has completely stalled. In no way shape or form was this going to win without a path from the federal government.

One of the reasons it was abandoned silently was because of the donations that were taken in and perhaps even used for different projects. (i can't verify that and its only an assumption)

Some may say "i don't know what i'm talking about" which is fine, maybe i don't. If i am so wrong and they are so right, why didn't they slam the door and get licenses for all with that project?

I am also a believer that license applications are up due to CA wanting to restrict gun ownership which in turn makes people want to get a license to comply. The majority of counties already issued and i know in my county the applications are way up in demand. CGF had little if anything to do with this perhaps other than my initial conversations with the new Sheriff and his already willingness to make it easier for our citizens to get their CCW.

When i asked for help in working with the county with the initiative people, i was basically shunned and was told they had no time and bigger fish to fry.

This is just my personal experience though. Others may differ in other counties.

stix213

10-14-2013, 2:51 PM

IMHO, the mistake CGN & CGF made post-Heller was to put all our Carry "eggs" in the (primarily federal) judicial "basket." We should not have done that. In May 2010, just pre-McDonald, Gene was predicting that we'd have Shall Issue or its judicial equivalent for most of CA by about Sp 2011 and for all of CA by about Su 2013.
http://www.calguns.net/calgunforum/showthread.php?p=4352431#post4352431 IF WE WIN Woollard, the equivalents would be Sp 2014 and Su 2016.... :mad:

In hindsight, we were judicially naive re. the level of opposition to the 2nd A in the federal judiciary (imitation Ben Stein in Ferris Buehler's Day Off: "Palmer? Palmer?")

The needless drama and distraction caused by the well-meaning, but politically naive UOC folks didn't help us either.

In other words.... Kcbrown was right.

moleculo

10-14-2013, 4:21 PM

In other words.... Kcbrown was right.

There were a few of us that have questioned the strategy and brought up many of the points that Paladin made. In most cases, anyone who tried to offer up similar suggestions or questioned the wisdom of certain tactics were publicly called "lay men" that weren't smart enough to understand what was going on, which turned into a feeding frenzy for the CGF faithful followers.

In hindsight, we were judicially naive re. the level of opposition to the 2nd A in the federal judiciary

No, certain of us need to stop blaming the federal judiciary for their 2A rulings and place blame squarely on where it belongs: terrible cases being pushed by a few "right people" that are hiring questionably skilled attorneys inexperienced at 2A law practice resulting in repeated losses in court.

IMO, we need to figure out how to take this fight back to the grass roots community level, targeting a few districts where we have an actual chance at electing pro 2A politicians into office. We need to be very judicious with the types of 2A cases that we file and make sure the best 2A attorneys are retained, resulting in cases that are well researched, thought out, written, and plead. We need to be inclusive of those who are willing to help and fight this battle instead of being exclusive and close minded.

Al Norris

10-14-2013, 6:04 PM

There were a few of us that have questioned the strategy and brought up many of the points that Paladin made. In most cases, anyone who tried to offer up similar suggestions or questioned the wisdom of certain tactics were publicly called "lay men" that weren't smart enough to understand what was going on, which turned into a feeding frenzy for the CGF faithful followers.
The the times I have disagreed with Gene, Gray or anyone else (here, at TFL or MDShooters), have I been castigated? Dog piled? No.

We've disagreed and voiced our opinions and walked away, all of us being the gentlemen that we all are.

No, certain of us need to stop blaming the federal judiciary for their 2A rulings and place blame squarely on where it belongs: terrible cases being pushed by a few "right people" that are hiring questionably skilled attorneys inexperienced at 2A law practice resulting in repeated losses in court.

While there may be plenty of blame to go around, that which is being heaped upon the judiciary is well deserved. They are, in fact, in rebellion with the holdings that came out of both Heller and McDonald. To say otherwise is to say you haven't been paying attention to what they (the district and circuit judges) have been writing within their opinions.

As for the skill and experience of certain attorneys at 2A law... Lest you forget, 2A law is in its infancy. There has been no need for "experienced" attorneys until after both Heller and McDonald were decided. A mere 5 years and you expect attorneys to be skilled and experienced in this new aspect of constitutional law?

Kharn

10-14-2013, 7:03 PM

12 hours to go.

M. D. Van Norman

10-14-2013, 9:30 PM

Al Norris is, of course, correct. The only experienced Second Amendment attorneys are those who argued Heller and McDonald, and these are the very same leading Woollard and Moore and Kachalsky. I never doubted the merits of the judicial strategy, and neither did kcbrown. We recognized it as the only hope for the prohibitionist states, but our timetables for potential victory were much more conservative.

We were right unfortunately. Victory has been neither quick nor complete thus far.

Al Norris

10-14-2013, 9:50 PM

One of the things that I constantly try to remind people: It took almost a 70 years for the 2A to be finally recognized as the right that it is (Miller to Heller). In that time, a plethora of anti-gun law was enacted. It will take (perhaps) decades to undo most of the damage. Some of the onerous laws will never be undone. They will remain as valid law.

Paladin

10-15-2013, 6:16 AM

Anyone know what time they post their list of accepted cases from the previous conference?

Paladin

10-15-2013, 6:28 AM

Anyone know what time they post their list of accepted cases from the previous conference?

I see from SCOTUSblog: "On Tuesday we expect orders from the October 11 Conference at 9:30 a.m. and will post on them promptly."

the common theme seems to be the challenging of may issue, i thought woollard addressed this by getting away from attacking the states authority on carry and was picking a fight more on the grounds of if all issuance or the ability to deny any form of carry at the discretion of the state entity then the right fails to exist.

So those with more insight? which case stands a cleaner or pure chance?

Gray Peterson

10-15-2013, 7:16 AM

is there a theory on the recent denial?

the common theme seems to be the challenging of may issue, i thought woollard addressed this by getting away from attacking the states authority on carry and was picking a fight more on the grounds of if all issuance or the ability to deny is at the discretion of the state then the right fails to exist.

So those with more insight? which case stands a cleaner or pure chance?

There are plenty of theories but since the Supreme Court doesn't tend to discuss the reasons for cert denials. The reply brief of Gura/SAF suggested another case coming up right in the briefing (Drake/NJ), and suggested that it would be filed for cert, as well as the upcoming California cases.

solanoslough

10-15-2013, 7:16 AM

is there a theory on the recent denial?

Maryland allows the carry of long arms for the purpose of self-defense.

"Maryland law generally requires a permit to wear
and carry a handgun in public places for purposes
unconnected to these specified activities. CR § 4-
203(a), (b)(2). This permit requirement applies only to
handguns, not rifles, shotguns, or other “long guns.”"
Woollard v Gallagher brief in opposition to writ of certiorari

The state allows the bearing of arms outside the home, for the purpose of self-defense, there is no constitutional violation.

solanoslough

10-15-2013, 7:19 AM

So those with more insight? which case stands a cleaner or pure chance?

A case where the petitioner is denied the complete use of arms outside the home for the purpose of self-defense. In other words, a case not backed by "the right people."

fizux

10-15-2013, 7:21 AM

They could be waiting for more circuits to weigh in before taking a challenge to may-issue (cough, 9th, cough).

Maybe this will motivate the Richards/Peruta panel to issue a decision instead of waiting to see what SCOTUS does with Woollard (like Kachalsky before it), but then again, they could wait longer and see what happens with Drake.

Mulay El Raisuli

10-15-2013, 8:16 AM

is there a theory on the recent denial?

the common theme seems to be the challenging of may issue, i thought woollard addressed this by getting away from attacking the states authority on carry and was picking a fight more on the grounds of if all issuance or the ability to deny any form of carry at the discretion of the state entity then the right fails to exist.

So those with more insight? which case stands a cleaner or pure chance?

A case that has the ban on LOC as its focus. The ONLY focus.

Because (again) it isn't that the Federal Courts have been ignoring Heller/McDonald completely. It's that our "judicial naivete" has had us banging our heads against the wall fighting an issue that we could not win. The recent dicta from the Circuits is that the Right does extend outside the home. But ALL of our efforts have been trying to make Shall Issue CCW the Right. Which, as predicted, failed. Which, I now see, has only encouraged anti sheriffs to continue their anti ways.

Grass roots political work should certainly be done. Because it will certainly help. But a win at SCOTUS will help even more. So, it's time (past time, actually) to pay attention to other dicta from the Circuits (notably in Khalchasky but ESPECIALLY in Peterson in the 10th) & give them the issue that will give us that win.

The Raisuli

taperxz

10-15-2013, 8:21 AM

With Woolard denied, the right to carry outside the home may not be settled til 2016 at the earliest now.

For CA, i guess this will free up the ninth to rule on Richards/Peruta

If we lose there, Gray Petersen will be owning a lot of people steak dinners.

meaty-btz

10-15-2013, 8:31 AM

SCOTUS is quick to pick up LGBT cases but consistently denies 2A cases. There is a pattern here and it isnt about the "right case" or the "wrong case" any more.

If they are not picky in other cases dealing with things why be so picky on 2A? Why be so narrow in rulings?

The pattern is becoming abundantly clear.

Chatterbox

10-15-2013, 8:40 AM

I think the whole concern with right case, wrong case, open carry, CCW is a red herring. The message that SCOTUS is sending is that while wholesale bans are not OK, "may issue" passes constitutional muster.

yellowfin

10-15-2013, 8:41 AM

A case that has the ban on LOC as its focus. The ONLY focus.

Because (again) it isn't that the Federal Courts have been ignoring Heller/McDonald completely. It's that our "judicial naivete" has had us banging our heads against the wall fighting an issue that we could not win. The recent dicta from the Circuits is that the Right does extend outside the home. But ALL of our efforts have been trying to make Shall Issue CCW the Right. Which, as predicted, failed. Which, I now see, has only encouraged anti sheriffs to continue their anti ways.

Grass roots political work should certainly be done. Because it will certainly help. But a win at SCOTUS will help even more. So, it's time (past time, actually) to pay attention to other dicta from the Circuits (notably in Khalchasky but ESPECIALLY in Peterson in the 10th) & give them the issue that will give us that win.

The Raisuli
Why can't they just drop the stupid picky eater 5 year old act and give us what we want and be done with it? Is it really THAT bad to hurry up and hand CA, MD, NY, et al. their tails and restore liberty as it was intended??? Is this form of torture amusing to them?

Apocalypsenerd

10-15-2013, 8:53 AM

Meaty likely has it correct. You can best judge a person's intent by their actions. If you compare the cases that SCOTUS is taking on other issues and answer Meaty's questions, you will have your unfortunate answer.

SCOTUS is quick to pick up LGBT cases but consistently denies 2A cases. There is a pattern here and it isnt about the "right case" or the "wrong case" any more.

If they are not picky in other cases dealing with things why be so picky on 2A? Why be so narrow in rulings?

The pattern is becoming abundantly clear.

pbreed

10-15-2013, 8:54 AM

Better to have them deny cert, than to grant cert and rule against RKBA. I think we are reading way to much subtlety into the grant/deny stuff. I think is as simple as we have 4 for and 4 against and 1 toss up. The 4 against don't want to grant cert, because the results are as they want it to be... the 4 for don't want to grant cert unless they are sure the 1 toss up will rule in their favor....

Putting my tinfoil hat on I would also not rule out some of the Roberts ACA blackmail stories from the fringe... making it potentially 3-5-1 not 4-4-1

Apocalypsenerd

10-15-2013, 8:57 AM

I will add that it is sad for our cause when "Moonbeam" does more to protect our Constitutional liberties than the SCOTUS. Brown is the only D I voted for during that election and only 1 of 2 politicians I am happy to have supported.

M. D. Van Norman

10-15-2013, 9:23 AM

Better to have them deny cert, than to grant cert and rule against RKBA.

Wrong! To again refuse to even address a burning constitutional question that affects 80 million people subjects the nation to unconscionable risk.

elSquid

10-15-2013, 9:34 AM

SCOTUS is quick to pick up LGBT cases but consistently denies 2A cases.

Is that true? I'm not familiar with all the decisions, but Lawrence ( their 'Heller' ) was 2003 and SCOTUS was pretty quiet on gay rights until 2013 - a gap of 10 years. Were there some notable cases that occurred in the interim that I'm missing?

I guess that I wonder if we as gun owners have an unreasonable expectation of the speed with which SCOTUS approaches these issues - especially the 2nd, which is essentially new ground. Does SCOTUS simply want to see a body of work develop from the lower courts?

-- Michael

M. D. Van Norman

10-15-2013, 9:35 AM

The “body of work” from the lower courts is pretty damned clear. :mad:

Librarian

10-15-2013, 9:36 AM

And see also ScotusBlog - http://www.scotusblog.com/case-files/cases/woollard-v-gallagher-2/

mofugly13

10-15-2013, 9:51 AM

Better to have them deny cert, than to grant cert and rule against RKBA. I think we are reading way to much subtlety into the grant/deny stuff. I think is as simple as we have 4 for and 4 against and 1 toss up. The 4 against don't want to grant cert, because the results are as they want it to be... the 4 for don't want to grant cert unless they are sure the 1 toss up will rule in their favor....

Putting my tinfoil hat on I would also not rule out some of the Roberts ACA blackmail stories from the fringe... making it potentially 3-5-1 not 4-4-1

I firmly believe that this is the case.

sholling

10-15-2013, 10:00 AM

A case that has the ban on LOC as its focus. The ONLY focus.

Because (again) it isn't that the Federal Courts have been ignoring Heller/McDonald completely. It's that our "judicial naivete" has had us banging our heads against the wall fighting an issue that we could not win. The recent dicta from the Circuits is that the Right does extend outside the home. But ALL of our efforts have been trying to make Shall Issue CCW the Right. Which, as predicted, failed. Which, I now see, has only encouraged anti sheriffs to continue their anti ways.

Grass roots political work should certainly be done. Because it will certainly help. But a win at SCOTUS will help even more. So, it's time (past time, actually) to pay attention to other dicta from the Circuits (notably in Khalchasky but ESPECIALLY in Peterson in the 10th) & give them the issue that will give us that win.
I'm sorry but that will not happen. The "Right People" will stick with 'shall-issue licensed concealed carry or bust' no matter how many times they lose at the CA level or how many rejections that they get from SCOTUS or how many decades that it takes to run out of cases to throw at the court. I also predict that they will continue to use our money to fight (through amicus briefs) any unlicensed loaded open carry (LOC) cases while refusing to take the hint and file their own well thought out and well funded unlicensed LOC case. In other words between their determination to beat the 'shall-issue licensed concealed carry or bust' horse into little more than a puddle of goo, and their determination to prevent unlicensed open carry from becoming recognised as 'the right' I seriously doubt that even the youngest of us here in California will ever in their lifetimes be able to legally bear arms in public.

With Woolard denied, the right to carry outside the home may not be settled til 2016 at the earliest now.

For CA, i guess this will free up the ninth to rule on Richards/Peruta

If we lose there, Gray Petersen will be owning a lot of people steak dinners.
I give us no better than a 25% chance of a victory from the 9th Circus panel, followed by a 90% chance of an en banc loss. Of course come time for SCOTUS to refuse us cert we'll all be throughly distracted by the California Democratic Party's annual all out war on what little is left on our rights and without the club of a SCOTUS ruling affirming at least strict scrutiny as the standard of review we won't have anything but flintlock muzzle loaders left to "bear" by the end of the decade. Naturally the AQMD will ban actually shooting them, even in self defense, because "they produce greenhouse gases". :rolleyes:

I think the whole concern with right case, wrong case, open carry, CCW is a red herring. The message that SCOTUS is sending is that while wholesale bans are not OK, "may issue" passes constitutional muster.
How would we know? The only question that we ever ask them is the same one that they keep telling us that they don't want to hear. We flat out refuse to ask them about unlicensed open carry.

Better to have them deny cert, than to grant cert and rule against RKBA. I think we are reading way to much subtlety into the grant/deny stuff. I think is as simple as we have 4 for and 4 against and 1 toss up. The 4 against don't want to grant cert, because the results are as they want it to be... the 4 for don't want to grant cert unless they are sure the 1 toss up will rule in their favor....

Putting my tinfoil hat on I would also not rule out some of the Roberts ACA blackmail stories from the fringe... making it potentially 3-5-1 not 4-4-1
I mostly agree with your conjecture, Kennedy is always a tossup and I doubt anybody trusts Roberts not to hang us out to dry on his Obamacare alter of statism, but it is just as likely that we aren't asking the right question. We keep asking (over and over) for a license to exercise an enumerated constitutional right and they may well be waiting for us to ask a different question such as "is a permission slip still required to exercise an enumerated constitutional right?"

kcbrown

10-15-2013, 10:11 AM

This denial was entirely predictable. I should know, because I predicted it. I predicted it on the basis of the fact that SCOTUS denied cert to Kachalsky rather than holding it pending the case they (it's been claimed) really wanted, and then vacating and remanding after ruling on the case they really wanted.

The denial of cert to Kachalsky, and now to Woollard, should make it plain to all of you here that SCOTUS has no intention of dealing with the issue of carry at all. And yes, that will be just as true of a pure open carry case as anything else. SCOTUS doesn't have the votes to rule in our favor and doesn't have the guts to rule against us. Instead, it is letting the lower courts do their work for them.

Carry as a right is done. We should, of course, continue to bring cases, but it's time to look elsewhere for actual relief. It's time to get the ball rolling for a Constitutional Convention.

Don't expect that to work, however. The state governments are much more interested in wielding power than they are in protecting the liberty of the citizenry. The outcome of a Constitutional Convention will reflect that fact, which means we will not get what we're after from it. But it has to be tried, because it's the only peaceful alternative that remains standing. All other avenues, including petitioning the courts, have been foreclosed.

sholling

10-15-2013, 10:13 AM

Putting my tinfoil hat on I would also not rule out some of the Roberts ACA blackmail stories from the fringe... making it potentially 3-5-1 not 4-4-1
Now that we know that the NSA monitors calls and emails the idea of blackmail is no longer tin foil hat territory. It's very likely how the administration kept Petraeus in line as long as they did, and a refusal on his part to continue to go along with lies is likely why he was outed as thoroughly and nastily as he was.

Chatterbox

10-15-2013, 10:13 AM

How would we know? The only question that we ever ask them is the same one that they keep telling us that they don't want to hear. We flat out refuse to ask them about unlicensed open carry.

Because if they wanted to, they could've legalized unlicensed open carry via a CCW case. Take the case, ask for a brief from somebody who supports LOC, reject the CCW argument, accept LOC. They don't want to.

speedrrracer

10-15-2013, 10:14 AM

Better to have them deny cert, than to grant cert and rule against RKBA. I think we are reading way to much subtlety into the grant/deny stuff. I think is as simple as we have 4 for and 4 against and 1 toss up. The 4 against don't want to grant cert, because the results are as they want it to be... the 4 for don't want to grant cert unless they are sure the 1 toss up will rule in their favor....

I firmly believe that this is the case.

I don't firmly believe this to be the case, but I do agree with pbreed -- it's better to be denied cert than to lose all with a ruling against our RKBA. The only reason why is because we have Drake in the pipeline, and after Drake there will be another case, forever, because our rights are being stolen from us, thus ensuring a continuity of such cases.

It's just hard to swallow that the Court is such a poor defender of an enumerated right and worse, that such poor defenders are arguably the best we have! Without Heller, we'd have absolutely nothing right now. Feinstein would have confiscated everything already.

SCOTUS doesn't have the votes to rule in our favor and doesn't have the guts to rule against us.
(emphasis mine)

Then there's still hope. As long as they don't rule against us, the door remains open. In time, the possibility exists that a more properly-staffed SCOTUS will come into existence, and they can correctly rule in our favor.

Bhobbs

10-15-2013, 10:34 AM

How about shifting focus away from carry right now and get back to keeping our guns? Why not focus on getting bans on semi auto rifles and the hand gun roster taken down? I know, I know, we have Pena, but that case has been stalled for years and probably will never see the light of day. Every time we get denied, we reenforce the antis resolve.

sholling

10-15-2013, 10:39 AM

Because if they wanted to, they could've legalized unlicensed open carry via a CCW case. Take the case, ask for a brief from somebody who supports LOC, reject the CCW argument, accept LOC. They don't want to.
SCOTUS is unlikely to answer an unasked question - it's the attorney's job to ask the right questions and the courts job to answer the questions asked and no more. Sorry, no disrespect intended, but you're grasping at straws to cover for our "Right People's" refusal to ask the court if unlicensed loaded open carry is the right. Until that question is asked directly we will never know the high court's answer.

I don't firmly believe this to be the case, but I do agree with pbreed -- it's better to be denied cert than to lose all with a ruling against our RKBA. The only reason why is because we have Drake in the pipeline, and after Drake there will be another case, forever, because our rights are being stolen from us, thus ensuring a continuity of such cases.
It ensures that there will be a decades long continued flow of money to those asking the same losing question over and over and losing again and again.

It's just hard to swallow that the Court is such a poor defender of an enumerated right and worse, that such poor defenders are arguably the best we have! Without Heller, we'd have absolutely nothing right now. Feinstein would have confiscated everything already.
It won't take the lower courts long to marginalize Heller enough to render it almost completely meaningless. Without a SCOTUS decision that specifies actual strict scrutiny or better as the standard of review then lower courts will declare that any and every infringement passes their rational basis (dressed up as intermediate scrutiny) standard of review. An unlicensed loaded open carry case was the perfect vehicle for a strict scrutiny or better ruling.

kcbrown

10-15-2013, 10:40 AM

(emphasis mine)

Then there's still hope.

There's always hope, even if it is but a fool's hope (as I believe it is here).

As long as they don't rule against us, the door remains open. In time, the possibility exists that a more properly-staffed SCOTUS will come into existence, and they can correctly rule in our favor.That is possible, but the demographic shift in the country is such that it is almost certainly not going to happen, most especially within the lifetime of any of us.

No, like I said, as regards the courts, at least, the right to carry is now dead. It will be treated as a right only by those jurisdictions that wish to. Which is to say, it won't truly be treated as a right anywhere, for the defining characteristic of a right is that it is something that can be exercised despite the objections of the government.

It's time to move on to what fallbacks we have. There are several additional cases already in place (e.g., Richards, Drake), but the logic that yielded my prediction about Woollard is just as applicable to them. They will be denied cert as well. We must petition for cert all the same, of course, but it is long past time to stop expecting those cases to bear fruit. If they do anyway, then it will be a pleasant surprise, but at this point, it's time to move on to the next phase.

We always knew that this was a possibility. Many of you were far too optimistic about our chances. Welcome to the real world (see my signature).

sholling

10-15-2013, 10:48 AM

How about shifting focus away from carry right now and get back to keeping our guns? Why not focus on getting bans on semi auto rifles and the hand gun roster taken down?
Semiautomatic rifles is seen as a bridge too far right now. It's way too likely that Roberts will rule that as long as we have access to revolvers and shotguns that's all that we need to satisfy the right.

I know, I know, we have Pena, but that case has been stalled for years and probably will never see the light of day. Every time we get denied, we reenforce the antis resolve.
In my layman's opinion Pena is going nowhere. In my opinion a second suit needs to be filed attacking the roster on an equal protection and titles of nobility grounds. Once LEOs are subject to the same laws as the rest of us then the legislature will be forced to repeal the law. Unfortunately that will not happen because the "Right People" will see it as an attack on LEO privilege and thus anti law & order.

Bhobbs

10-15-2013, 10:57 AM

Semiautomatic rifles is seen as a bridge too far right now. It's way too likely that Roberts will rule that as long as we have access to revolvers and shotguns that's all that we need to satisfy the right.

In my layman's opinion Pena is going nowhere. In my opinion a second suit needs to be filed attacking the roster on an equal protection and titles of nobility grounds. Once LEOs are subject to the same laws as the rest of us then the legislature will be forced to repeal the law. Unfortunately that will not happen because the "Right People" will see it as an attack on LEO privilege and thus anti law & order.

Unfortunately, I agree with you about Roberts but that is our biggest challenge. How do we get relief from people who believe our rights are no longer being infringed? We are relying on the government to restrain itself, which isn't the best option.

I don't care if I am seen as anti LEO because I want them held to the same laws as we are. If that would get the laws taken down faster, I am all for it.

sholling

10-15-2013, 10:57 AM

It's time to get the ball rolling for a Constitutional Convention.
We agree on one thing.

Chatterbox

10-15-2013, 11:07 AM

SCOTUS is unlikely to answer an unasked question - it's the attorney's job to ask the right question. Sorry, no disrespect intended, but you're grasping at straws to cover for our "Right People's" refusal to ask the court if unlicensed loaded open carry is the right. Until that question is asked directly we will never know the high court's answer.

The court has shown in the past that it can shape the plaintiff's argument to achieve the decision it wants. It doesn't matter who asks this question, and the preoccupation with "right people" is IMHO pointless.

Paladin

10-15-2013, 11:23 AM

I'm disappointed, not discouraged.

I'm now assuming they'll deny Drake too.

I'm now assuming they want the 9th to finish Richards-Peruta and will accept that. Since the 9th may not be done with it (en banc), in time for this term, that is why they won't hold either Woollard or Drake.

If, next term, they deny Richards-Peruta (you know whoever loses will ask for cert), we have to ask ourselves, why should they take Palmer? I will be discouraged at that point.

In the meantime, as I posted above:

IMHO, the mistake CGN & CGF made post-Heller was to put all our Carry "eggs" in the (primarily federal) judicial "basket." We should not have done that. In May 2010, just pre-McDonald, Gene was predicting that we'd have Shall Issue or its judicial equivalent for most of CA by about Sp 2011 and for all of CA by about Su 2013.
http://www.calguns.net/calgunforum/showthread.php?p=4352431#post4352431 IF WE WIN Woollard, the equivalents would be Sp 2014 and Su 2016.... :mad:

In hindsight, we were judicially naive re. the level of opposition to the 2nd A in the federal judiciary (imitation Ben Stein in Ferris Buehler's Day Off: "Palmer? Palmer?")

The needless drama and distraction caused by the well-meaning, but politically naive UOC folks didn't help us either.

What we NEGLECTED was to continue the "long march" through local politics. We should have organized to get 1 out of every 20 adults (5%), permits in the 35 counties that readily issue CCWs. Once you have 5% of the adult pop. (think voters), with a vested interest in who's sheriff, you'll NEVER get another anti sheriff. These folks will also reduce local violent crime rates AND be more optimistic and involved in who they send to Sacto. in Assembly and State Senate races. (That could have helped stop the anti bills that the legislature passed this year so that we wouldn't have had to rely totally upon vetoes by Gov. Brown.) That boring, low-level, low-drama grunt work flies under the MSM radar but is effective. Instead we were counting on a federal judicial knockout punch....

Instead (by my reading of various postings, not exhaustive review of GC statements), we had some counties liberalize issuance (Solano), other liberalize and then tightened them back up (San Mateo, San Benito), and others tighten further (Ventura). IOW, other than Sac. Co., our ability to carry is being blown back and forth by the local political winds.

If SCOTUS doesn't take Woollard tomorrow, that means the odds are greater they will not take Drake. Then we're left hoping for CA9 and Richards-Peruta, or SCOTUS and Richard-Peruta in a year, or SCOTUS and Palmer in two years.

Why waste more time waiting when we can be doing something now??? Sure, it ain't "sexy" and doesn't win the entire state at once. But it gets more people CCWs and ensures that more counties will stay in the hands of "virtual Shall Issue" sheriffs.

and

I agree: my post was NOT to bash Gene or ANY of the CGF/CGN leaders. I only provided that link: to show I was not making things up; and to show how far "off schedule" things have gotten (e.g., most law-abiding CAians should have been able to CCW for 2.5 years by now....).

What I'm saying is we have something CGNers can be doing NOW that we're not doing. If current CGN/CGF leadership is too swamped to take this on, perhaps they will bring on other leaders to head this up. (BTW that is NOT me! I'm a "visionary" leader who can see strategic openings and give advice, but am TERRIBLE at leading "Joe Averages" and the logistics necessary to execute such a program. I just try to contribute to the fight where I have the ability.)

What I forgot to mention is the EXCELLENT work Brandon/wildhawker and Gray have (had?) been doing w/the CGF Carry License Sunshine and Compliance Initiative (http://www.calgunsfoundation.org/resources/carry-license-sunshine-and-compliance-initiative/ ). There has been a STEADY INCREASE in # of CCWs in most counties, and I'd guess a lot of that has to do w/their work in cleaning up and simplifying the application process (i.e., slowly getting sheriffs' CCW policies to comply w/state law).

As the Sunshine Initiative lowers the hurdles to getting CCWs in a county, we need an in-county organization for all 58 counties of people "get out the applicants" just as a political parties have "get out the votes" local organizations. But we do NOT need to wait until a local sheriff is 100% in conformity. For example, if he requires 3 letters of recommendation from 3 non-related people in the county: so what? Many of us would be willing to go along w/that now and get a CCW now rather than wait for 100% compliance 2 years from now. Let the applicant decide how much illegality he's willing to put up with while waiting for the courts to fix things. That will also help the sheriff not be swamped w/applicants all at once.

But I haven't heard any news re the Sunshine initiative's work in the past year or so (e.g., no "Time to apply!" announcements at new counties). Does anyone know if it is still in operation? Still making progress? If so, what are the latest news or "wins"? (I started a thread in CA Politics/political activism to ask for Sunshine update here: http://www.calguns.net/calgunforum/showthread.php?p=12536356#post12536356)

Paladin

10-15-2013, 11:25 AM

FWIW Jackson and Kwong are non-Carry cases that deal with standard of review/scrutiny.

kcbrown

10-15-2013, 11:26 AM

It won't take the lower courts long to marginalize Heller enough to render it almost completely meaningless. Without a SCOTUS decision that specifies actual strict scrutiny or better as the standard of review then lower courts will declare that any and every infringement passes their rational basis (dressed up as intermediate scrutiny) standard of review. An unlicensed loaded open carry case was the perfect vehicle for a strict scrutiny or better ruling.

Such a ruling from SCOTUS would make no real difference in the lower courts anyway. The lower courts would just "interpret" the SCOTUS ruling in whatever way necessary to achieve the outcome they want to achieve. Such is most easily done by limiting the decision to its facts, but that's not the only way. Courts are masters of twisting words to suit their purpose. Ignore that at your peril.

No, the only way for SCOTUS to actually make a difference is to show a willingness to overturn any and all rulings that are contrary to that issued by SCOTUS. This is what it did during the civil rights movement. But SCOTUS has shown that it has no interest in doing that as regards RKBA.

Without a Supreme Court willing to back its words with actions, Heller is just ink on a page, as is any other decision it issues. I've said before that lower courts will achieve their goals by continuously ruling in whatever way they want no matter what SCOTUS does, and by overwhelming SCOTUS with such cases. You are now seeing the truth of that with your very own eyes. The "gentleman's agreement" that existed within the federal judiciary is, like the rest of the country, crashing down around us. What will be left is a baleful malevolence on the part of a government that has but one purpose: to exercise power for its own sake.

This is the country reverting to the mean, for serfdom of the population is the historical norm, not the exception.

mag360

10-15-2013, 11:31 AM

con-con we win easily *if* it stays narrowly tailored and doesn't get corrupted with excess baggage, it must just be for the 2A and the 2A only.

We need 38 states, that is it. Throw all gun control laws out the window nationwide. No NFA, no GCA, no FOPA (gets rid of hughes amendment), no mag limits, no DV misdemeanors for life bans, no losing your gun rights for getting in a bar fight type crap, no restrictions on "places you can carry", shall issue licenses with nationwide legality including territories of the US. NICS stays with exemption for current proof of carry license to cut down on burden. No sale restrictions nationwide to concealed carry permit holders (waiting periods, face to face, state border restrictions).

Since carry permit is shall issue based only on a background check, there shouldn't be any *****ing about this. Qualification for carry license is background check, no training requirement.

That leaves us with another 3 that could wobble and we would still have 38 signers.

speedrrracer

10-15-2013, 11:33 AM

Without a SCOTUS decision that specifies actual strict scrutiny or better as the standard of review then lower courts will declare that any and every infringement passes their rational basis (dressed up as intermediate scrutiny) standard of review.

Not necessarily true. If the lower courts can destroy Heller (and I think you and I agree they're doing a fine job of destruction so far), then they can also destroy [whatever decision you hope we get].

If the lower courts are going to continue their rebellion, then it requires a continuity of responses from SCOTUS. One more SCOTUS victory, regardless the details, wouldn't cut it.

but at this point, it's time to move on to the next phase.

Constitutional Conventions are, imo, the worst possible idea. Talk about blatant optimism! I don't see how you reconcile such a thing with your own statements. If you believe in the demographic shift you mentioned, then the results of a Concon can only be a further neutering of the 2A :shrug:

And let's not even get started on how they would re-write the 4A...

curtisfong

10-15-2013, 11:41 AM

I've said before that lower courts will achieve their goals by continuously ruling in whatever way they want no matter what SCOTUS does, and by overwhelming SCOTUS with such cases. You are now seeing the truth of that with your very own eyes.

Even worse, this slowly builds up a history of consistently unconstitutional case law and precedent that no doubt a future SCOTUS will use to completely nullify the 2A in its entirety.

And at that point, only a con-con will be the solution; which, of course, will be impossible because there will be no gun owners left that aren't criminals (either "real" criminals, or by letter of the law).

It is not because I believe it will succeed that I believe it has to be tried. See below.

I don't see how you reconcile such a thing with your own statements. If you believe in the demographic shift you mentioned, then the results of a Concon can only be a further neutering of the 2A :shrug:
The demographic shift I speak of is a change, something that is happening slowly and will have an impact on the future. Yes, if the Concon is held after the shift has occurred, it will result in exactly what you say.

That's why it has to be done soon.

And let's not even get started on how they would re-write the 4A...The Concon is the only peaceful alternative left. It must be tried.

Why?

Precisely because it's the only peaceful alternative left.

Game theory provides the reason. The only way to secure liberty beyond a Concon is civil war. But if civil war occurs, then the outcome of a Concon becomes irrelevant. And if the Concon results in the destruction of liberty, then civil war becomes the only way to restore liberty.

But if the Concon succeeds, then the necessity of civil war is averted and liberty is restored.

The likely outcome of an action is not always the only thing that determines whether or not that action should be taken. Logic is what determines that. And in this case, logic says that the Concon must be tried. To do otherwise is to relegate the country to the destructive forces of a civil war without bothering to roll the dice one last time, or to relegate the country to serfdom.

Understand, however, that my expectation is that a Concon will not bear fruit for us. For as I said, the state governments are much more interested in wielding power than they are in protecting the liberty of the citizenry, and the Concon will reflect that fact. But that does not reduce the duty we have to try it.

Failure of the Concon will leave us with the choice between serfdom and civil war. I believe that is the choice our enemies are attempting to force upon us, because they know that the government is likely to win such a war.

There is a reason I believe that liberty is dead (and not just here in this country, but in the entire world), and that we are reverting to the historical mean. It is not an idle thought, or a conclusion I've come to lightly. It is a conclusion I draw as a result of a cold, hard, and extensive look at the real world, both past and present, and the application of logic to what that examination reveals.

But it does not matter how impossible the odds are. Liberty must be fought for regardless, for the only alternative is to accept serfdom.

I do not make these predictions in an attempt to discourage people from fighting. I make them because I have a fealty to the truth, and because the people we need by our sides will need to be made of stern stuff in order to win the day. Those who are willing to stay in the fight after seeing exactly what they're up against are the ones that have what it takes. We do everyone, especially ourselves, a disservice by pretending that things will be any easier or more likely than evidence and logic predict.

Rosy predictions will get you a bunch of initial support, followed by a mass exodus precisely when you most need all hands on deck.

kcbrown

10-15-2013, 1:06 PM

is there a theory on the recent denial?

the common theme seems to be the challenging of may issue, i thought woollard addressed this by getting away from attacking the states authority on carry and was picking a fight more on the grounds of if all issuance or the ability to deny any form of carry at the discretion of the state entity then the right fails to exist.

So those with more insight? which case stands a cleaner or pure chance?

None do, at least that I'm aware. At this point, there is no reason to believe that SCOTUS will ever take a carry case except, after a change of composition, to eliminate carry as a right altogether (and why should they do that even after a change of composition when the lower courts are accomplishing that for them so well?).

stix213

10-15-2013, 1:44 PM

It is not because I believe it will succeed that I believe it has to be tried. See below.

The demographic shift I speak of is a change, something that is happening slowly and will have an impact on the future. Yes, if the Concon is held after the shift has occurred, it will result in exactly what you say.

That's why it has to be done soon.

The Concon is the only peaceful alternative left. It must be tried.

Why?

Precisely because it's the only peaceful alternative left.

Game theory provides the reason. The only way to secure liberty beyond a Concon is civil war. But if civil war occurs, then the outcome of a Concon becomes irrelevant. And if the Concon results in the destruction of liberty, then civil war becomes the only way to restore liberty.

But if the Concon succeeds, then the necessity of civil war is averted and liberty is restored.

The likely outcome of an action is not always the only thing that determines whether or not that action should be taken. Logic is what determines that. And in this case, logic says that the Concon must be tried. To do otherwise is to relegate the country to the destructive forces of a civil war without bothering to roll the dice one last time, or to relegate the country to serfdom.

Understand, however, that my expectation is that a Concon will not bear fruit for us. For as I said, the state governments are much more interested in wielding power than they are in protecting the liberty of the citizenry, and the Concon will reflect that fact. But that does not reduce the duty we have to try it.

Failure of the Concon will leave us with the choice between serfdom and civil war. I believe that is the choice our enemies are attempting to force upon us, because they know that the government is likely to win such a war.

There is a reason I believe that liberty is dead (and not just here in this country, but in the entire world), and that we are reverting to the historical mean. It is not an idle thought, or a conclusion I've come to lightly. It is a conclusion I draw as a result of a cold, hard, and extensive look at the real world, both past and present, and the application of logic to what that examination reveals.

But it does not matter how impossible the odds are. Liberty must be fought for regardless, for the only alternative is to accept serfdom.

I do not make these predictions in an attempt to discourage people from fighting. I make them because I have a fealty to the truth, and because the people we need by our sides will need to be made of stern stuff in order to win the day. Those who are willing to stay in the fight after seeing exactly what they're up against are the ones that have what it takes. We do everyone, especially ourselves, a disservice by pretending that things will be any easier or more likely than evidence and logic predict.

Rosy predictions will get you a bunch of initial support, followed by a mass exodus precisely when you most need all hands on deck.

It sounds to me that if you were to place a bet on what the end game is, you'd be putting it on failure of all peaceful avenues, and a move toward civil war.

If I were to assume that the SCOTUS didn't deny cert because they want to see what the 9th does first (which I see as a possibility, but I have gradually moved into the camp that SCOTUS has no desire to help us), I would have to give the constitutional convention plan a low chance of success, at least for our 2A interests. Civil War would then come down to how much do people really want their rights more than a government centric existence. I'm not sure how to even make a guess at that.

The weekend riots at at least one walmart over the weekend due to a 2 day failure of the EBT system tells me that a civil war could spark for other reasons though.

putput

10-15-2013, 1:53 PM

I'm beginning to question the fight to recognize the "Right" to apply for a permit to hide fact that you are exercising a Right...

Open carry has always been the default and early law recognizes a criminal’s need for concealed weapons and the need of law enforcement to prohibit this behavior to prevent those crimes.

Since Drake (correct me if I'm wrong) and Richards can only carry by issued permit, then maybe there’s still a SCOTUS case…

Didn't the Heller court actually state as much when they mentioned presumption of lawfulness of bans on concealed carry?

kcbrown

10-15-2013, 2:04 PM

It sounds to me that if you were to place a bet on what the end game is, you'd be putting it on failure of all peaceful avenues, and a move toward civil war.

That is indeed my bet.

I hope it will turn out otherwise, but do not expect it to.

But my bet on the endgame is actually worse than that. My bet on the endgame is that liberty is lost for good, to not be seen again for many hundreds (if not thousands!) of years.

The country and, indeed, the entire world, is reverting to the historical mean. Serfdom of the general population is the historical rule, not the exception.

If I were to assume that the SCOTUS didn't deny cert because they want to see what the 9th does first (which I see as a possibility, but I have gradually moved into the camp that SCOTUS has no desire to help us), I would have to give the constitutional convention plan a low chance of success, at least for our 2A interests. Civil War would then come down to how much do people really want their rights more than a government centric existence. I'm not sure how to even make a guess at that.
That's exactly what it would come down to. At that point, it would become a question of whether to tolerate serfdom, or to take up arms against the government that is imposing that serfdom. That's a decision that each individual will have to make for himself.

But be warned: there will be no shortage of people actually supporting the government in that scenario, no shortage of people willing to put the boot of the government to the face of their fellow man. Anyone who takes up arms against the government in that scenario will almost certainly die. If you don't believe me, then look at all the trouble those who are attempting to overthrow the tyrannical government in Syria are having, and they have plenty of outside help and are attempting to overthrow a government much weaker than ours. Any group attempting that here would have no help from the outside world to speak of at all. Our government would threaten a nuclear strike against any foreign power that attempted to support those attempting to overthrow it.

You must understand that civil war is a very low-probability option. It is almost certain to fail, either as a result of an outright loss for those attempting to restore liberty, or as a result of the installation of another tyrant by those who won. The successful restoration of liberty after such a conflict is historically very rare. Indeed, the only such instance I can think of off the top of my head is the American Revolution.

As with so many other bad options, it'll be the choice between a near-certainty of serfdom at the expense of near-certain death, and an absolute certainty of it.

The weekend riots at at least one walmart over the weekend due to a 2 day failure of the EBT system tells me that a civil war could spark for other reasons though.That is entirely possible, but is no reason to refrain from attempting a Concon.

speedrrracer

10-15-2013, 3:13 PM

The country and, indeed, the entire world, is reverting to the historical mean.

Country: yes, world: no, but I'm going to later guess at what you might really mean, and if I'm right, then I actually agree with you.

Cheap-and-easy test:

Name 5 absolute monarchies (where the monarch actually can take your head off, not Constitutional monarchies, where it's just for show) and 5 republics. Extremely easy to name the republics, but I'll bet you're stretching to fill those last monarchy slots....hard to think of the weird little countries that still have a ruling monarch.

Now, pretend it's 1800. Name 5 republics, and 5 monarchies. Notice how the opposite is now true -- almost everywhere is still an autocratic regime, and you might have to spend some time looking at the various Independence Days to figure out who had thrown off the shackles by 1800.

This simple test suggests great progress towards freedom has been made.

For a much more scientific look, with tighter focus on recent years, we can use the Democracy Index (http://en.wikipedia.org/wiki/Democracy_Index), which shows the world has been roughly stable in terms of # of countries governed by nasty regimes vs those whose citizens have power over their government, since 2006.

Clearly, the world is not trending away from freedom, as you claim, even if we switch our focus to very recent years.

Alternatively, we can look at the Freedom in the World Index (http://en.wikipedia.org/wiki/Freedom_in_the_World), which has been measuring such things since 1973. It shows that global freedom is improving, albeit very slowly:

I agree it's clear that we're losing ground here in America, but the global claim is simply incorrect. I would concede that freedom is gaining ground globally mainly because it had no other direction in which to go. We're still not that far from some very dark times in our history.

IMO, much more important that minutiae about global governmental systems is the loss of the magnitude of freedom envisioned by the Founders. Somewhere, somehow, society has lost view of the fact that the freedoms they protected are solely responsible for the creation of the greatest nation the world has ever known, and has discounted it's value.

Yes, there are fewer Pol Pots running around the world today. Yay, us. But that's not enough. If the goal is to get the best out of humanity, the only solution is real freedom, the kind the Founders fought for, because that's when people truly thrive.

It's amazing how far ahead of their time the Founders truly were (and, sadly, still are).

kcbrown

10-15-2013, 3:42 PM

Country: yes, world: no, but I'm going to later guess at what you might really mean, and if I'm right, then I actually agree with you.

I'm measuring liberty by what a person can lawfully do.

The metrics you're using are far too coarse to reflect the actual state of affairs.

To prove my point, examine the entry for the United Kingdom in the "freedom of the world index" you cited. Note how it scores at the very top.

And yet, the U.K. is one of the most heavily regulated countries on the planet. There is very nearly nothing that one can do there that isn't governed by some law or other, that isn't restricted.

If the U.K. gets top marks for "freedom", then I have no choice but to disregard the measurement mechanism that arrives at that conclusion. Whatever it is that it's measuring, it's apparently not liberty.

Clearly, the world is not trending away from freedom, as you claim, even if we switch our focus to very recent years.
The United States, United Kingdom, and plenty of other countries illustrate that liberty can die quite easily under the watchful eye of a "representative" government.

Alternatively, we can look at the Freedom in the World Index (http://en.wikipedia.org/wiki/Freedom_in_the_World), which has been measuring such things since 1973. It shows that global freedom is improving, albeit very slowly:

Again, the exact opposite of your claim.
No, it's not. Look at the overall trend. It's a curve which has recently peaked. Yes, it would appear to be an upwards trend if you attempted to apply a linear trend to it. But if you apply a curve to it, then you'll see that it's about to head down again. This is especially true if you recognize that such things tend to be cyclical over time.

Moreover, you (or, more specifically, your sources) are failing to account for one very important fact: laws are passed much more frequently and quickly than they are repealed. I know of no country on the planet for which that is not the case. And because a law is a restriction on liberty, it follows that the trend on actual liberty must be a downwards one, for the rate of law passage being much (much) higher than that of repeal means that one's ability to (legally) do things is getting ever more constricted.

I agree it's clear that we're losing ground here in America, but the global claim is simply incorrect. I would concede that freedom is gaining ground globally mainly because it had no other direction in which to go. We're still not that far from some very dark times in our history.
I don't think such ground is being gained anymore. It looks like it's just about to start trending downwards. And that's by the obviously flawed measure of "freedom" that is being used.

IMO, much more important that minutiae about global governmental systems is the loss of the magnitude of freedom envisioned by the Founders. Somewhere, somehow, society has lost view of the fact that the freedoms they protected are solely responsible for the creation of the greatest nation the world has ever known, and has discounted it's value.

Yes, there are fewer Pol Pots running around the world today. Yay, us. But that's not enough. If the goal is to get the best out of humanity, the only solution is real freedom, the kind the Founders fought for, because that's when people truly thrive.

It's amazing how far ahead of their time the Founders truly were (and, sadly, still are).I completely agree with all of this.

stix213

10-15-2013, 3:43 PM

Country: yes, world: no, but I'm going to later guess at what you might really mean, and if I'm right, then I actually agree with you.

Cheap-and-easy test:

Name 5 absolute monarchies (where the monarch actually can take your head off, not Constitutional monarchies, where it's just for show) and 5 republics. Extremely easy to name the republics, but I'll bet you're stretching to fill those last monarchy slots....hard to think of the weird little countries that still have a ruling monarch.

Now, pretend it's 1800. Name 5 republics, and 5 monarchies. Notice how the opposite is now true -- almost everywhere is still an autocratic regime, and you might have to spend some time looking at the various Independence Days to figure out who had thrown off the shackles by 1800.

This simple test suggests great progress towards freedom has been made.

For a much more scientific look, with tighter focus on recent years, we can use the Democracy Index (http://en.wikipedia.org/wiki/Democracy_Index), which shows the world has been roughly stable in terms of # of countries governed by nasty regimes vs those whose citizens have power over their government, since 2006.

Clearly, the world is not trending away from freedom, as you claim, even if we switch our focus to very recent years.

Alternatively, we can look at the Freedom in the World Index (http://en.wikipedia.org/wiki/Freedom_in_the_World), which has been measuring such things since 1973. It shows that global freedom is improving, albeit very slowly:

I agree it's clear that we're losing ground here in America, but the global claim is simply incorrect. I would concede that freedom is gaining ground globally mainly because it had no other direction in which to go. We're still not that far from some very dark times in our history.

IMO, much more important that minutiae about global governmental systems is the loss of the magnitude of freedom envisioned by the Founders. Somewhere, somehow, society has lost view of the fact that the freedoms they protected are solely responsible for the creation of the greatest nation the world has ever known, and has discounted it's value.

Yes, there are fewer Pol Pots running around the world today. Yay, us. But that's not enough. If the goal is to get the best out of humanity, the only solution is real freedom, the kind the Founders fought for, because that's when people truly thrive.

It's amazing how far ahead of their time the Founders truly were (and, sadly, still are).

The flaw in your argument is taking the term "republic" at face value and as an equivalence to freedom / liberty. The transfer of rights from the people to government, because government supposedly knows best for your own well being and protection, has eroded that argument to such an extent as to being close to laughable.

The statists have gamed the system, where property is taken from the makers and given to the takers, where of course the takers are more than willing to vote to reelect those who facilitate that transfer. Any number of other rights can then be removed from the population and transferred to the government, because the takers will not vote out those who are doing it out for fear of losing what they are getting for free. Then you also have the collaborators who agree with the transfer out of "fairness" or some other supposedly high ideal to excuse the theft. So you end up with a republic structure, but without the corresponding freedoms.

Tincon

10-15-2013, 5:10 PM

This denial was entirely predictable. I should know, because I predicted it. I predicted it on the basis of the fact that SCOTUS denied cert to Kachalsky rather than holding it pending the case they (it's been claimed) really wanted, and then vacating and remanding after ruling on the case they really wanted.

The denial of cert to Kachalsky, and now to Woollard, should make it plain to all of you here that SCOTUS has no intention of dealing with the issue of carry at all.

Hey now, I predicted it as well, but them not wanting to take carry isn't the reason. They will eventually take a carry case. But it won't be one argued by Gura.

The Supreme Court justices have made it pretty clear that:

1. They will be taking another 2A case which will decide many of the pending issues.

2. The case will not be a criminal appeal.

3. The case will not be argued by Alan Gura.

pastureofmuppets

10-15-2013, 5:22 PM

So, do we have any real ray of hope in the not too distant future?

Tincon

10-15-2013, 5:26 PM

So, do we have any real ray of hope in the not too distant future?

Yeah, I'd say they will take up a case in the next couple years. In the mean time, most of CA (geographically) and almost all of the country is pretty much shall issue. This just sucks for us big city folk.

kcbrown

10-15-2013, 5:39 PM

Hey now, I predicted it as well, but them not wanting to take carry isn't the reason. They will eventually take a carry case. But it won't be one argued by Gura.

Why won't it be one argued by Gura?

I'm open to the possibility of you being right on this, but I need more than mere assertion to be convinced of it. What is your basis for distinguishing cases based on whether or not they are being argued by Gura?

Also, which cases do you believe are candidates for SCOTUS in this respect in the next couple of years?

stix213

10-15-2013, 5:44 PM

Is Drake a Gura case? I know Peruda isn't, but it is practically combined with the Gura case against Yolo county as it is.

edit: nevermind, it appears Drake is another Gura case

Tincon

10-15-2013, 6:16 PM

Why won't it be one argued by Gura?

It was discussed at length in the thread I quoted myself from.

Also, which cases do you believe are candidates for SCOTUS in this respect in the next couple of years?

NRA v. McCraw, Peruta are both candidates. McCraw would be the soonest, but I have less hope for it.

penguin0123

10-15-2013, 6:24 PM

Allow me to put forth a comparison that the 2A movement is the parallel of the civil rights movement, and that our current state is near that of the civil rights mvmt in the 50s.

Note that for Civil Rights to be effectively brought to the recalcitrant states, we needed case law (Brown v. Board of Education) and an Executive willing to execute the judgement (Ike sending in 101st and federalizing Arkansas's National Guard). When our current Executive flaunts the laws, why would the Judiciary intentionally put their lack of power on display? Why would SCOTUS hand down a judgement knowing that Barry will brush it aside?

IMO, we need an Executive willing to take on RKBA issues before SCOTUS will hand us the judgement we all know it *must* pass. And that means we the 2A community need to find an RKBA candidate and make sure s/he become the next POTUS.

Tincon

10-15-2013, 6:26 PM

No, that isn't part of the thought process at SCOTUS.

Gray Peterson

10-15-2013, 6:38 PM

Why won't it be one argued by Gura?

I'm open to the possibility of you being right on this, but I need more than mere assertion to be convinced of it. What is your basis for distinguishing cases based on whether or not they are being argued by Gura?

Also, which cases do you believe are candidates for SCOTUS in this respect in the next couple of years?

It's essentially the belief that Paul Clement's involvement in the Heller and McDonald (as Solicitor General and then NRA lawyer) cases were the driving reasons why SCOTUS took those cases, not Alan Gura's work quality.

It's essentially the belief that Paul Clement's involvement in the Heller and McDonald (as Solicitor General and then NRA lawyer) cases were the driving reasons why SCOTUS took those cases, not Alan Gura's work quality.

The above probably most succinctly above explains this mentality.Hey, Gray, if you get a minute, could you post a quick status/update re. the Sunshine Initiative at:
http://www.calguns.net/calgunforum/showthread.php?t=837299

Thx!

Gray Peterson

10-15-2013, 7:02 PM

Hey, Gray, if you get a minute, could you post a quick status/update re. the Sunshine Initiative at:
http://www.calguns.net/calgunforum/showthread.php?t=837299

Thx!

Brandon is the one to talk to about that, not me. I stopped volunteering months ago to dedicate myself to my husband and other familial matters, including with my father getting sick and having to manage his affairs and care.

htjyang

10-15-2013, 7:04 PM

is there a theory on the recent denial?

the common theme seems to be the challenging of may issue, i thought woollard addressed this by getting away from attacking the states authority on carry and was picking a fight more on the grounds of if all issuance or the ability to deny any form of carry at the discretion of the state entity then the right fails to exist.

So those with more insight? which case stands a cleaner or pure chance?

My own theory is that the Court is waiting for a more politically comfortable environment. If I'm right, that means the Court won't take any such cases until 2017 at the earliest and that all legal challenges in the next 4 years will be denied.

htjyang

10-15-2013, 7:06 PM

I will add that it is sad for our cause when "Moonbeam" does more to protect our Constitutional liberties than the SCOTUS. Brown is the only D I voted for during that election and only 1 of 2 politicians I am happy to have supported.

It wasn't the Court that signed the lead ammo ban into law. You can thank Brown for that one.

Paladin

10-15-2013, 7:11 PM

Brandon is the one to talk to about that, not me. I stopped volunteering months ago to dedicate myself to my husband and other familial matters, including with my father getting sick and having to manage his affairs and care.I asked Brandon via his website a couple of days ago.

Sorry to hear about your dad. I had to do that w/mine when he got Alzheimers....

Hang in there, guy! Thx for your work in the past. :thumbsup:

htjyang

10-15-2013, 7:16 PM

I'm sorry but that will not happen. The "Right People" will stick with 'shall-issue licensed concealed carry or bust' no matter how many times they lose at the CA level or how many rejections that they get from SCOTUS or how many decades that it takes to run out of cases to throw at the court. I also predict that they will continue to use our money to fight (through amicus briefs) any unlicensed loaded open carry (LOC) cases while refusing to take the hint and file their own well thought out and well funded unlicensed LOC case. In other words between their determination to beat the 'shall-issue licensed concealed carry or bust' horse into little more than a puddle of goo, and their determination to prevent unlicensed open carry from becoming recognised as 'the right' I seriously doubt that even the youngest of us here in California will ever in their lifetimes be able to legally bear arms in public.

Maybe it's because the "right people" are... right?

Supreme Court verdicts are like Hail Mary passes. Just because we got lucky twice doesn't mean the odds have changed. The odds of receiving cert have remained constant for a long time. To go all in with LOC is a very questionable approach in light of the relatively undeveloped state of 2A law, the Court's close division,... among other factors.

Paladin

10-15-2013, 8:22 PM

The thing that ticks me most about all of this, is that I just got through updating my list of CCW incidents (now up to 106), and only 2 are from CA, and, IIRC, only 1 from NY (retired LEO), and NONE from MD, NJ, HI, or the other May Issue states or DC (or IL, yet).

IOW, there are a TON of law-abiding people getting victimized around the country because they could not legally carry. Related: there are a TON of BGs who successfully committed crimes and thus were rewarded for their evil deeds. This just encourages them, their peers, and others to take up a life of crime. Ugh!

My list is linked in my sig line.

yellowfin

10-15-2013, 8:25 PM

Hey now, I predicted it as well, but them not wanting to take carry isn't the reason. They will eventually take a carry case. But it won't be one argued by Gura.
OK, so who else do we have who is similarly capable and prolific?

ToldYouSo

10-15-2013, 8:29 PM

Maybe it's because the "right people" are... right?

To go all in with LOC is a very questionable approach in light of the relatively undeveloped state of 2A law, the Court's close division,... among other factors.

What makes you say that 2A law is "undeveloped?" For nearly 200 years state courts have interpreted the right to bear arms to mean the right to openly carry arms and not a right to carry concealed weapons. Three times the US Supreme Court has said that concealed carry can be prohibited. The California courts, both pre and post Heller, have held that concealed carry is not a right.

The current US Supreme Court is not going to take a case which argues that it really didn't mean what it said in Heller about Open Carry being the right guaranteed by the Constitution and that nothing in its decision should cast doubt on the longstanding prohibitions against concealed carry, let alone decide to hear a case which would entail requiring a permit for an individual to exercise a fundamental right.

Drake will be denied cert. Richards, Baker and Peruta are no different from Drake, Kachalsky and Woollard, it too will be denied cert. Peruta is even more defective than the other concealed carry cases as it explicitly disavowed any challenge to any law. McKay tried to correct the mistake in Peruta but even then, it raises only a "potential" challenge and is, at best, Richards warmed over.

yellowfin

10-15-2013, 8:32 PM

My own theory is that the Court is waiting for a more politically comfortable environment.80%+ of states agree with shall issue for carry. What more could they realistically expect? The only thing really wrong is the worthless maggots in the White House and AG office. Of course, we'd be WAY better off without Ginsberg, Breyer, and Sotomayor on the bench too, but can't they just ignore them?

elSquid

10-15-2013, 8:39 PM

OK, so who else do we have who is similarly capable and prolific?

Paul Clement, Ted Olsen, probably a bunch of other lawyers that I've never heard of. :)

How many lawyers regularly bring successful cases before SCOTUS? Any of them, I guess.

Maybe it's because the "right people" are... right?
Did we suddenly win shall-issue concealed carry without me hearing about it? If not then it's long past time to try something else in addition to their way. The problem is that they have a history of taking the other side against unlicensed open carry. I have no problem with Gura continuing to take baby steps toward shall issue licensed concealed carry cases. Do what you like but not one more cent of my money will go to any 'gun rights' organization that tries to play shot blocker or fails to open a second - unlicensed carry - line of attack. Feel free to wait 50-100 years if you're that patient and believe so strongly in their theory, but don't expect everyone else to wait while they throw the same argument at the court over and over and over and over and over and over and over and over again and again until most of us are long dead of old age.

The hard and cold fact is that unless we get the Supreme Court engaged in fighting for us really-really soon you can 100% count on Washington DC levels of restrictions on our rights coming to California within the next 6-10 years.

M. D. Van Norman

10-15-2013, 9:21 PM

What is your basis for distinguishing cases based on whether or not they are being argued by Gura?

Only monumental arrogance, I suspect. :rolleyes:

Tincon

10-15-2013, 10:38 PM

OK, so who else do we have who is similarly capable and prolific?

Nichols? Birdt? Gorski? I hope they don't get there either.

On the other hand, we have former United States Solicitor General Paul Clement, who is FAR better qualified than Gura. And Paul has NOT been criticized by both a COA judge and a Supreme Court justice, both of whom were on our side of the rulings, for sloppy work on gun cases. The idea that Gura was somehow responsible for winning either Heller or McDonald is rank fiction.

Only monumental arrogance, I suspect. :rolleyes:

How is that exactly? I'm certainly not suggesting that I am qualified.

CCWFacts

10-15-2013, 10:40 PM

The denial of cert to Kachalsky, and now to Woollard, should make it plain to all of you here that SCOTUS has no intention of dealing with the issue of carry at all.

That's my feeling. I also predicted today would be a disappointment, although I don't have the same degree of legal insight you have.

It's time to get the ball rolling for a Constitutional Convention.

When I first read your post, asking for a con-con, I thought it was an absurd proposal, because such a thing has never happened before. Well, it hasn't happened before but it has come very very close (http://en.wikipedia.org/wiki/Convention_to_propose_amendments_to_the_United_Sta tes_Constitution) on a few occasions, and it is possible that it could happen now. I've gone from thinking it's absurd to thinking, maybe it's time.

But it has to be tried, because it's the only peaceful alternative that remains standing. All other avenues, including petitioning the courts, have been foreclosed.

Yes. As we can see with the budget fight right now in Congress, we're at a point where there is no longer a common vision or set of values here. That's really why Congress is paralyzed. It's not because one side is being crazy, but because both sides are being sane and fighting for their values, which don't have any overlap. Maybe a con-con could help us out of this mess.

htjyang

10-15-2013, 10:44 PM

What makes you say that 2A law is "undeveloped?" For nearly 200 years state courts have interpreted the right to bear arms to mean the right to openly carry arms and not a right to carry concealed weapons. Three times the US Supreme Court has said that concealed carry can be prohibited. The California courts, both pre and post Heller, have held that concealed carry is not a right.

The current US Supreme Court is not going to take a case which argues that it really didn't mean what it said in Heller about Open Carry being the right guaranteed by the Constitution and that nothing in its decision should cast doubt on the longstanding prohibitions against concealed carry, let alone decide to hear a case which would entail requiring a permit for an individual to exercise a fundamental right.

Drake will be denied cert. Richards, Baker and Peruta are no different from Drake, Kachalsky and Woollard, it too will be denied cert. Peruta is even more defective than the other concealed carry cases as it explicitly disavowed any challenge to any law. McKay tried to correct the mistake in Peruta but even then, it raises only a "potential" challenge and is, at best, Richards warmed over.

The phrase I used was "relatively undeveloped", with emphasis on "relatively." Compared to better developed areas such as 1A law, there simply aren't a lot of case law on 2A and a lot of existing precedents are negative (targeted toward criminal defendants bringing forward a last, desperate appeal).

People might be reading too much into Heller with regard to its language on open carry. The majority cited those examples as affirmation of carry, but it's not clear to me that the specific form of carry in question was affirmed as constitutional, especially since the case itself was not on the carry question, but the keep question. From a textualist perspective, the language of 2A merely supports carry without clarifying what form.

htjyang

10-15-2013, 10:47 PM

80%+ of states agree with shall issue for carry. What more could they realistically expect? The only thing really wrong is the worthless maggots in the White House and AG office. Of course, we'd be WAY better off without Ginsberg, Breyer, and Sotomayor on the bench too, but can't they just ignore them?

Those "worthless maggots" happen to have a gang of loyal lapdogs (i.e. most of the press) who will parrot whatever nonsense they spout forth. One does not have to share CJ Roberts's concern about the Court's reputation (and I don't) to recognize the fact that it is a concern that weighs on him and perhaps others as well.

htjyang

10-15-2013, 10:52 PM

Did we suddenly win shall-issue concealed carry without me hearing about it? If not then it's long past time to try something else in addition to their way. The problem is that they have a history of taking the other side against unlicensed open carry. I have no problem with Gura continuing to take baby steps toward shall issue licensed concealed carry cases. Do what you like but not one more cent of my money will go to any 'gun rights' organization that tries to play shot blocker or fails to open a second - unlicensed carry - line of attack. Feel free to wait 50-100 years if you're that patient and believe so strongly in their theory, but don't expect everyone else to wait while they throw the same argument at the court over and over and over and over and over and over and over and over again and again until most of us are long dead of old age.

The hard and cold fact is that unless we get the Supreme Court engaged in fighting for us really-really soon you can 100% count on Washington DC levels of restrictions on our rights coming to California within the next 6-10 years.

Pray tell, what LOC law suit are you funding? If you have one that is being litigated by competent attorneys with reasonably sympathetic defendants and fact patterns, do let me know.

Otherwise, your complaint aside, I'm glad to say that the most important games in town are being supported by prudent attorneys, some of whom had more face time with SC justices than all of us combined and I'm confident that sooner or later, they'll get lucky. It's only a matter of time.

kcbrown

10-15-2013, 10:53 PM

It was discussed at length in the thread I quoted myself from.

You never did give real specifics for your reasons in that thread. You only mentioned Gura's performance at orals. Can you cite other cases that have been rejected by SCOTUS due to the past performance of the arguing counsel, or is it your opinion that Gura is unique in this regard?

NRA v. McCraw, Peruta are both candidates. McCraw would be the soonest, but I have less hope for it.

Peruta will be the real test. My prediction is that SCOTUS will deny cert to it for the very same reason I made that prediction of Woollard. Your prediction must be that they will grant cert to it, since the basis you're using in your predictions on this does not apply to Peruta.

This is cool. It means we have competing hypotheses that make differing testable predictions about the same subject. The one which makes the correct predictions stands. The one which does not gets discarded. Such is the scientific method, after all.

M. D. Van Norman

10-15-2013, 10:54 PM

How is that exactly?

It’s your life, dude. You figure it out.

I have my own problems to solve.

kcbrown

10-15-2013, 10:55 PM

My own theory is that the Court is waiting for a more politically comfortable environment. If I'm right, that means the Court won't take any such cases until 2017 at the earliest and that all legal challenges in the next 4 years will be denied.

Can you be more specific about what you mean by a "more politically comfortable environment"?

I think we'll have lost at least one of the Heller 5 by 2017. At least, that's the way the death statistics say to bet.

Tincon

10-15-2013, 11:00 PM

You never did give real specifics for your reasons in that thread. You only mentioned Gura's performance at orals. Can you cite other cases that have been rejected by SCOTUS due to the past performance of the arguing counsel, or is it your opinion that Gura is unique in this regard?

He might be. I don't know of any other lawyers that were publicly slapped by both a COA judge and a SCOTUS justice who both found for him.

As for Peruta, you may be right. If they don't take one of those cases, things are looking grim.

htjyang

10-15-2013, 11:00 PM

Can you be more specific about what you mean by a "more politically comfortable environment"?

I think we'll have lost at least one of the Heller 5 by 2017. At least, that's the way the death statistics say to bet.

At least an executive branch that won't demagogue every time somebody abuses his firearms. Obama didn't show his pro-gun control zealotry until late 2012. He certainly didn't dare to show it in 2010 when McDonald was being litigated. Nor did he show it in 2008 when Heller was litigated.

M. D. Van Norman

10-15-2013, 11:00 PM

One does not have to share CJ Roberts’s concern about the Court’s reputation … to recognize the fact that it is a concern that weighs on him and perhaps others as well.

If history remembers this moment at all, it will be as one of cowardice and dereliction. :mad:

htjyang

10-15-2013, 11:04 PM

If history remembers this moment at all, it will be as one of cowardice and dereliction. :mad:

I certainly hope so. I'm of the opinion that nothing brings more disgrace on the Court than its consistent refusal to uphold the Constitution precisely and exactly when it is under attack.

Regrettably however, neither you nor I sit on the Court. That's why our personal preferences are irrelevant. It's the Court's timetable that we have to figure out.

kcbrown

10-15-2013, 11:25 PM

At least an executive branch that won't demagogue every time somebody abuses his firearms. Obama didn't show his pro-gun control zealotry until late 2012. He certainly didn't dare to show it in 2010 when McDonald was being litigated. Nor did he show it in 2008 when Heller was litigated.

We will not get a different executive environment from this point forward. The Republican Party is self-destructing before our eyes, and that shows no signs of letting up. The candidate offered up by the Republican Party for the 2016 election cycle will be worthless, just as Romney was. While the Republican candidate will clearly be better on 2A issues than the Democrat candidate, he will be worthless in all the other ways that matter, just as Romney was. He will not be a pro-liberty candidate. That will make all the difference in the world, just as it did in the 2012 election.

Therefore, the Democrats will win the 2016 Presidential election, since if you have to choose between a worthless candidate who will give you free stuff and a worthless candidate who won't, most will choose the former, and we will therefore not see the change in the political environment that you think SCOTUS is looking for.

In any case, if the Supreme Court cowers in the face of the executive branch in the way you imply, then it is finished as an institution regardless, for the very reason for its existence is to act as a check against the other two branches of government.

htjyang

10-15-2013, 11:45 PM

We will not get a different executive environment from this point forward. The Republican Party is self-destructing before our eyes, and that shows no signs of letting up. The candidate offered up by the Republican Party for the 2016 election cycle will be worthless, just as Romney was. While the Republican candidate will clearly be better on 2A issues than the Democrat candidate, he will be worthless in all the other ways that matter, just as Romney was. He will not be a pro-liberty candidate. That will make all the difference in the world, just as it did in the 2012 election.

Therefore, the Democrats will win the 2016 Presidential election, since if you have to choose between a worthless candidate who will give you free stuff and a worthless candidate who won't, most will choose the former, and we will therefore not see the change in the political environment that you think SCOTUS is looking for.

In any case, if the Supreme Court cowers in the face of the executive branch in the way you imply, then it is finished as an institution regardless, for the very reason for its existence is to act as a check against the other two branches of government.

I knew I could count on you to spread doom and gloom. :p Though your reason to do so remains a mystery to me. To advise people to emigrate to Switzerland, perhaps?

Your idea of a constitutional convention is, by your own admission, problematic. I certainly don't expect such a convention to improve things. In fact, I expect it to make things worse. If there is such a convention, I'm sure this time there will be new "rights" proposed, like a right to education, health care, minimum wage, and who knows what other nonsense. All of them guaranteed by the business end of a federal gun, no doubt.

Even gun rights are going to have problems. What is most likely to happen in such a convention is a deal which specifically allows states to regulate firearms as they please. In other words, firearm owners in CA, NY, MA,...etc. are toast. Confiscation will begin 5 minutes after the new amendment's passage.

ToldYouSo

10-15-2013, 11:54 PM

Pray tell, what LOC law suit are you funding? If you have one that is being litigated by competent attorneys with reasonably sympathetic defendants and fact patterns, do let me know.

Otherwise, your complaint aside, I'm glad to say that the most important games in town are being supported by prudent attorneys, some of whom had more face time with SC justices than all of us combined and I'm confident that sooner or later, they'll get lucky. It's only a matter of time.

Are you aware that every court of appeals has upheld concealed carry laws? Even the 7th Circuit Court of appeals said that Illinois could prohibit concealed carry.

Drake will be denied cert just as Kachalsky and Woollard were denied. The SAF dropped its appeal and case out of the 8th Circuit which leaves only the 9th Circuit Court of Appeals left with pending concealed carry cases.

Richards v. Prieto will be the controlling case for concealed carry. Not only was it the first to be taken under submission (Mehl v Blanas was kicked) it is a facial challenge. Gura forgot to argue an as-applied challenge in district court. Simply stating in one's case that one is making an as-applied challenge is insufficient. There must be an as-applied challenge in the pleadings. There isn't. Gura made that same mistake in Schrader v. Holder. The court admonished Gura for failing to make an as-applied challenge saying that if he had argued that the law was unconstitutional as applied to his client then he very well may have won.

Peruta v. San Diego failed to challenge the constitutionality of any law, which is likely to be fatal as well.

In oral arguments, Baker v. Kealoha, said that he shot himself in the foot by bringing the appeal.

Name two of the three judges, which heard all three appeals, who are going to give the win to any of these three cases.

sholling

10-16-2013, 12:01 AM

Pray tell, what LOC law suit are you funding? If you have one that is being litigated by competent attorneys with reasonably sympathetic defendants and fact patterns, do let me know.
None so far, but I've given all that I can to the NRA and the SAF in hopes that they would do the smart thing and open a second (unlicensed OC) front to supplement and compliment their current losing strategy. Until they do I'm done with them.

Otherwise, your complaint aside, I'm glad to say that the most important games in town are being supported by prudent attorneys, some of whom had more face time with SC justices than all of us combined and I'm confident that sooner or later, they'll get lucky. It's only a matter of time.
Time is not on our side. The Heller 5 are getting older and at least one or two will likely be replaced by hardcore anti-gun Progressive radicals appointed by President Hillary Clinton. We'll have a rough enough time getting a pro-freedom vote from a Chief Justice cowering in fear of Obama and the leftist media's wrath without waiting until after 2-3 Hillary appointments before trying a different path. The bottom line is that if we don't get either a win or cert from Richards then it's very likely that the game is over for carry and for the 2nd Amendment in general here in California.

htjyang

10-16-2013, 12:05 AM

To ToldYouSo:

I'm not entirely sure what you're saying. Let me quote you:

Are you aware that every court of appeals has upheld concealed carry laws? Even the 7th Circuit Court of appeals said that Illinois could prohibit concealed carry.

Are you saying that courts have upheld concealed carry or not? Can you also tell me where did the 7th Circuit state that the state could ban concealed carry?

You quoted my reply to sholling, but it was a post on LOC suits v. concealed carry suits. How did your post address that dispute?

htjyang

10-16-2013, 12:08 AM

None so far, but I've given all that I can to the NRA and the SAF in hopes that they would do the smart thing and open a second (unlicensed OC) front to supplement and compliment their current losing strategy. Until they do I'm done with them.

Time is not on our side. The Heller 5 are getting older and at least one or two will likely be replaced by hardcore anti-gun Progressive radicals appointed by President Hillary Clinton. We'll have a rough enough time getting a pro-freedom vote from a Chief Justice cowering in fear of Obama and the leftist media's wrath without waiting until after 2-3 Hillary appointments before trying a different path. The bottom line is that if we don't get either a win or cert from Richards then it's very likely that the game is over for carry and for the 2nd Amendment in general here in California.

I see this bizarre argument over and over again. If you truly believe that "time is not on our side", then what's the point of litigating at all? Even if you get a victory, by your own logic, it will only be temporary, to be reversed quickly enough by the tides of time that you are supposedly seeing. In that case, what's the point of supporting even LOC suits, other than waste your money?

fizux

10-16-2013, 12:11 AM

I've learned to stop feeding the troll (at least until the next time I slip up and take the bait).

Sakiri

10-16-2013, 12:26 AM

Well I'd prefer to hear that I'm guaranteed the right to carry sometime while I'm still able to hold a gun. You know.... like, in the next few years?

I flat out can not afford a carry license here, just like the idiots in Sac want it. Starting to wonder if a case shouldn't start by some shmuck open carrying simply because he's exercising a right that he's being denied by oppressive poll taxes.

sholling

10-16-2013, 12:29 AM

I see this bizarre argument over and over again. If you truly believe that "time is not on our side", then what's the point of litigating at all?
The point of litigating unlicensed open carry before a Progressive majority take over the court is to establish Supreme Court precedent. SCOUTUS rulings can be rejected by later courts but it's much harder to do without very serious backlash when it's a civil rights ruling reaffirming an enumerated constitutional right that's being undone. That's why it's so important to move forward with a well funded and organized challenge to laws banning unlicensed open carry, and to do it now - before it's too late.

ToldYouSo

10-16-2013, 12:30 AM

To ToldYouSo:

I'm not entirely sure what you're saying. Let me quote you:

Are you saying that courts have upheld concealed carry or not? Can you also tell me where did the 7th Circuit state that the state could ban concealed carry?

You quoted my reply to sholling, but it was a post on LOC suits v. concealed carry suits. How did your post address that dispute?

Sholling is more than capable of responding to your post. I don't speak for him. Also, if you lack the ability to look up cases, your opinion on cases rings hollow.

"And a state may be able to require "open carry" — that is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783" Moore v. Madigan, 702 F. 3d 933, 938 - Court of Appeals, 7th Circuit (2012)

Heller at 626 states in relevant part:

"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).""

State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251 are the two citations which the Supreme Court in Heller said perfectly captures the meaning of the right to bear arms.

"Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.""

Five justices on the US Supreme Court said that concealed carry is unmanly and ignoble. Even the minority read the majority to say that concealed carry can be banned.

The writing is on the wall. You aren't going to get shall-issue concealed carry out of this court and it is foolish in the extreme to think that the makeup of the next court is going to give it too you.

sholling

10-16-2013, 12:35 AM

Well I'd prefer to hear that I'm guaranteed the right to carry sometime while I'm still able to hold a gun. You know.... like, in the next few years?
My guess is it won't happen without leaving the state.

Starting to wonder if a case shouldn't start by some shmuck open carrying simply because he's exercising a right that he's being denied by oppressive poll taxes.
Unfortunately the usual calguns members would be thrilled by the protestor's arrest and loss of rights for 10 years and would simply respond to the news with their statist battle cry of "play stupid games". Some of us are our own worst enemies. :rolleyes:

htjyang

10-16-2013, 12:40 AM

The point of litigating unlicensed open carry before a Progressive majority take over the court is to establish Supreme Court precedent. SCOUTUS rulings can be rejected by later courts but it's much harder to do without very serious backlash when it's a civil rights ruling reaffirming an enumerated constitutional right that's being undone. That's why it's so important to move forward with a well funded and organized challenge to laws banning unlicensed open carry, and to do it now - before it's too late.

What about the Slaughterhouse cases that virtually eliminated the Privileges or Immunities Clause? What about Maryland v. Shatzer that limited Miranda rights to only 14 days? What about Montejo v. Louisiana that overruled Michigan v. Jackson (which ruled that a defendant can't waive his right to an attorney)?

kcbrown

10-16-2013, 12:45 AM

I knew I could count on you to spread doom and gloom. :p Though your reason to do so remains a mystery to me. To advise people to emigrate to Switzerland, perhaps?

No. To set the appropriate expectations for the purpose of planning and execution, and to ensure that those who fight alongside us do so for the right reasons. And to ensure that people know exactly what they're getting into.

Proper planning and execution cannot be done in the face of inaccurate predictions. Indeed, inaccurate predictions inevitably result in incorrect allocation of resources, greater-than-anticipated losses, and battles being fought that should have been avoided altogether (as well as, in the case of pessimistic predictions, failure to fight battles that should be fought). Optimistic predictions have caused wars to be lost (see, e.g., Germany's optimism as regards fighting a war on two fronts).

Accurate predictions are a requirement.

I cannot help that the real world is the way it is. I can only point out that it is. My predictions are based on logic applied to observation. They are the result of applying, to the degree possible, the scientific method to the world at large. I do not like the predictions I'm making. I abhor them. But that will not prevent me from making them, for my fealty is to the truth. We cannot win by burying our heads in the sand. We cannot win by deluding ourselves. We can win if we are realistic about what is possible and what is not. That chance of winning might not be high, but it'll be higher if we are realistic than it will be if we are not.

Because in the end, the only thing the real world responds to favorably is properly executed action. And except for when one gets lucky, that happens only as a result of understanding the real world. Making accurate predictions is central to that. It is through accurate predictions that we have the technology we have. The entirety of science (upon which technology is built) revolves around it.

An optimistic prediction is a prediction that is in error. The real world does not tolerate errors well. Those who make errors as a result of inaccurate predictions tend to pay the price. Sometimes that price is very dear indeed.

Your idea of a constitutional convention is, by your own admission, problematic. I certainly don't expect such a convention to improve things. In fact, I expect it to make things worse. If there is such a convention, I'm sure this time there will be new "rights" proposed, like a right to education, health care, minimum wage, and who knows what other nonsense. All of them guaranteed by the business end of a federal gun, no doubt.

Even gun rights are going to have problems. What is most likely to happen in such a convention is a deal which specifically allows states to regulate firearms as they please. In other words, firearm owners in CA, NY, MA,...etc. are toast. Confiscation will begin 5 minutes after the new amendment's passage.Yes, that is how I expect it to go down as well. But it must be tried, because the only alternative is to go straight to civil war.

Again, game theory shows why the Concon must be tried first. Civil war, if successful, would moot the failure of a Concon, but a Concon could, as unlikely as it may be, eliminate any need for civil war. Therefore, a Concon must be tried. Logic yields no other conclusion.

htjyang

10-16-2013, 1:05 AM

Sholling is more than capable of responding to your post.

I agree, which is why I don't understand why you thought it necessary to respond to a post I made in response to him.

Also, if you lack the ability to look up cases, your opinion on cases rings hollow.

In your previous post, you made a statement without any support, not even so much as a citation to the relevant case. It's up to you to support your point, not me.

"And a state may be able to require "open carry" — that is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783" Moore v. Madigan, 702 F. 3d 933, 938 - Court of Appeals, 7th Circuit (2012)

Which is not the same as "A state can ban concealed carry of firearms without violating the Second Amendment." I interpret the court to say that a state can require open carry rather than require concealed carry, which is not the same as saying that the state can ban concealed carry.

Heller at 626 states in relevant part:

"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).""

State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251 are the two citations which the Supreme Court in Heller said perfectly captures the meaning of the right to bear arms.

"Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.""

Five justices on the US Supreme Court said that concealed carry is unmanly and ignoble. Even the minority read the majority to say that concealed carry can be banned.

The writing is on the wall. You aren't going to get shall-issue concealed carry out of this court and it is foolish in the extreme to think that the makeup of the next court is going to give it too you.

Your argument is over-determined. The Heller Court never stated that "concealed carry is unmanly and ignoble." That language came from previous, lower courts. The Heller Court merely cited those rulings as examples that 2A was not unlimited. Furthermore, the arguments of those previous courts were based upon social views of the times, views that may no longer exist today. From a purely textualist perspective, the language of the 2A itself never favored one form of carry over another. Last but hardly least, carry was not directly on point in Heller, which was about the 3 DC regulations that did not have to do with carry outside the home. So its value as binding precedent is relatively lower.

Sakiri

10-16-2013, 1:08 AM

My guess is it won't happen without leaving the state.

Unfortunately the usual calguns members would be thrilled by the protestor's arrest and loss of rights for 10 years and would simply respond to the news with their statist battle cry of "play stupid games". Some of us are our own worst enemies. :rolleyes:

Leaving the state isn't an option. Probably not for another 5 years until the other half pulls his head out of his butt and graduates college already(stupid procrastination).

And knowing my pig headedness I'd be the one offering up the test case. Except that if I can't afford a carry license how the hell am I going to afford the lawyer to get the case seen in a court?

Seriously.

WHY can't SCOTUS stop being vague for once? Seriously. Why the hell do we have to have someone do something that's likely against the frickin law so we can contest it? There is no bloody way that we're going to get a "open carry is the right" case going without someone being denied a permit because one is required.

The states that allow open carry don't have carry problems. The ones that do have no open carry period so why the hell would we be petitioning the court for it? Therein lies the problem.

I don't like Nichols because he sounds like a whiny, spoiled brat and will probably get tossed on his rear by SCOTUS. I know I sound like that too when I say I don't care of your kid gets to carry if I never did, but I'm not the one fighting a court case about it.

This has to be the most ridiculous thing going on here. They got *this* close to outright stating it in Heller and such, yet we have to push a case through sixty different courts that will do nothing but sit on it for a decade before they'll see it, instead of just shoving one in front of them immediately asking for clarification on a statement they made. -_-

Sakiri

10-16-2013, 1:13 AM

Which is not the same as "A state can ban concealed carry of firearms without violating the Second Amendment." I interpret the court to say that a state can require open carry rather than require concealed carry, which is not the same as saying that the state can ban concealed carry.

Oh, but they have.

I'll go dig up the stupid case again. I really need to bookmark it.

Was a maritime case in which one of the dicta made mention of it. BRB

http://supreme.justia.com/cases/federal/us/165/275/case.html

From a Wikipedia article on concealed carry in the United States, which linked to this case:
"Prior to the 1897 supreme court case Robertson v. Baldwin, the federal courts had been silent on the issue of concealed carry. In the dicta from a maritime law case the Supreme Court commented that state laws restricting concealed weapons do not infringe upon the right to bear arms protected by the Federal Second Amendment.[67]"

This presumably includes laws banning the concealed carry of firearms.

htjyang

10-16-2013, 1:19 AM

kcbrown,

You're not considering the possibility that a constitutional convention will deprive gun owners in states like CA support from gun owners in other states. In other words, perhaps such a convention will create a false sense of security for gun owners in safe states while all private firearms in states like CA are being confiscated. Therefore, even if there is a civil war, it may only be limited to the unfree states which will make it easier for gun owners there to be picked off one by one. (Hey, you're the one who wants to bet on the pessimistic scenarios.)

A truly pessimistic scenario will assume that in the event of a civil war, the "wrong side" will win. So again, what's the point? Why not just surrender already?

sholling

10-16-2013, 1:32 AM

What about the Slaughterhouse cases that virtually eliminated the Privileges or Immunities Clause? What about Maryland v. Shatzer that limited Miranda rights to only 14 days? What about Montejo v. Louisiana that overruled Michigan v. Jackson (which ruled that a defendant can't waive his right to an attorney)?
Nothing has changed with Slaughterhouse and it's reading POI out of existence so you've made my point for me. A bigoted Democrat dominated court wiped an entire clause out of the constitution and 150 years later it's still ignored by the court because they are unwilling to overturn past precedent. The 1873 court could safely wipe out a section of the constitution because they weren't overruling past SCOTUS precedent affirming those freedoms. That's what we face again if we don't get a win before the balance on the court changes. But I can see that you are not open to facts and logic and will believe to your last day that if the "Right People" just file another 50 or 100 or 500 nearly identical cases that sometime in the next 100 years one of them just has to go our way. What did Einstein say about doing the same thing over and over and expecting different results? :rolleyes:

kcbrown

10-16-2013, 1:39 AM

kcbrown,

You're not considering the possibility that a constitutional convention will deprive gun owners in states like CA support from gun owners in other states. In other words, perhaps such a convention will create a false sense of security for gun owners in safe states while all private firearms in states like CA are being confiscated.

Please elaborate.

I see scant difference between that situation and what we have right now. See DC. And based on SCOTUS' actions to date, as well as the existence of cases such as Osterweil v Bartlett, I see no reason to believe that SCOTUS will actually support its own ruling in Heller at this point.

That means that general confiscation is a very real possibility in a few years even in the absence of a Constitutional Convention.

Therefore, even if there is a civil war, it may only be limited to the unfree states which will make it easier for gun owners there to be picked off one by one. (Hey, you're the one who wants to bet on the pessimistic scenarios.)
Actually, that might be preferable, because in that case, the free states can get away with providing support for those fighting for liberty in unfree states, while a civil war with things as they currently stand would mean fighting the federal government itself, which is a much more difficult (and, therefore, much more likely to fail) proposition.

A truly pessimistic scenario will assume that in the event of a civil war, the "wrong side" will win.

That may be the case, but I'm not interested in making pessimistic predictions, I'm interested in making accurate ones. As it happens, if a civil war involves fighting against the federal government (as I presume it would in most scenarios), then victory for the other side is the most likely outcome, and that makes the prediction that the "wrong side" will win an accurate one.

But it's also irrelevant, for reasons I'll state below.

So again, what's the point? Why not just surrender already?Surrender?

Never.

To surrender is to accept serfdom over liberty.

I've already stated elsewhere (and even in this thread, I think) that civil war is unlikely to work as well (the government has far too much firepower to make that reasonably possible), and that it is my belief that liberty is dying in the world and won't be seen again for hundreds, if not thousands, of years (if ever. Look up water monopoly empires. When there is no "outside", as is the case in the modern technological world, tyranny can live forever).

But like so many others, you are making the mistake of confusing my predictions with my beliefs about what must be done. They are not the same thing here.

The nature of liberty is that it demands that it be fought for no matter how small the chance of winning. There are few other things that qualify in the same manner.

htjyang

10-16-2013, 1:43 AM

Oh, but they have.

I'll go dig up the stupid case again. I really need to bookmark it.

Was a maritime case in which one of the dicta made mention of it. BRB

http://supreme.justia.com/cases/federal/us/165/275/case.html

From a Wikipedia article on concealed carry in the United States, which linked to this case:
"Prior to the 1897 supreme court case Robertson v. Baldwin, the federal courts had been silent on the issue of concealed carry. In the dicta from a maritime law case the Supreme Court commented that state laws restricting concealed weapons do not infringe upon the right to bear arms protected by the Federal Second Amendment.[67]"

This presumably includes laws banning the concealed carry of firearms.

My last objections to ToldYouSo apply here as well. The Heller Court never even cited the Robertson language at issue. Robertson was not about concealed carry, it was about whether certain seamen were held against their will. As such, 2A was simply not on point there, either.

sholling

10-16-2013, 1:45 AM

kcbrown,

You're not considering the possibility that a constitutional convention will deprive gun owners in states like CA support from gun owners in other states. In other words, perhaps such a convention will create a false sense of security for gun owners in safe states while all private firearms in states like CA are being confiscated. Therefore, even if there is a civil war, it may only be limited to the unfree states which will make it easier for gun owners there to be picked off one by one. (Hey, you're the one who wants to bet on the pessimistic scenarios.)

A truly pessimistic scenario will assume that in the event of a civil war, the "wrong side" will win. So again, what's the point? Why not just surrender already?
You're not considering the possibility that a black hole will swallow the planet.

Horrible things can happen if we get out of bed in the morning (a car accident, a suicide bomber at the mall, or a million other disasters) but that doesn't mean we should never leave our beds because something awful might happen. What we do know is that minus a successful constitutional convention that the power of the federal government will continue to grow and that individual freedom will continue to shrink until we are little different from any other 3rd world people's republic or we have split into two countries. We know that because it's been the direction of the country since FDR's 1st term.

ToldYouSo

10-16-2013, 2:17 AM

Which is not the same as "A state can ban concealed carry of firearms without violating the Second Amendment." I interpret the court to say that a state can require open carry rather than require concealed carry, which is not the same as saying that the state can ban concealed carry.

Which is your personal opinion and one that is not shared by any Federal appellate court or the California appellate courts.

When you get yourself appointed to an appellate court, come back and lecture us on your interpretation. The only opinions that matter are the ones published by the courts of appeal and they all say you don't have a clue.

kcbrown

10-16-2013, 2:30 AM

Which is your personal opinion and one that is not shared by any Federal appellate court or the California appellate courts.

When you get yourself appointed to an appellate court, come back and lecture us on your interpretation. The only opinions that matter are the ones published by the courts of appeal and they all say you don't have a clue.

The 10th Circuit opinion in Peterson is perhaps the most on-point as regards this.

Someone with the appropriate standing needs to challenge the Denver open carry ban. It'll probably have to be someone in a state that issues carry permits on a shall-issue basis but which is not recognized by Colorado's reciprocity laws. In other words, a plaintiff who is identically situated to Gray.

There may be cleaner cases that can be brought on the subject, but I don't know of any. It would be most interesting, however, if a challenge to an open carry ban were to be brought in a jurisdiction that issues concealed carry permits on a shall-issue basis, particularly if the plaintiff were a holder of such a permit. If the 2nd Amendment truly protects open carry specifically, then such a challenge should succeed, no? However, you should expect SCOTUS to deny cert in that case as well, particularly if the circuit-level decision upholds the open carry ban.

ToldYouSo

10-16-2013, 2:33 AM

My last objections to ToldYouSo apply here as well. The Heller Court never even cited the Robertson language at issue. Robertson was not about concealed carry, it was about whether certain seamen were held against their will. As such, 2A was simply not on point there, either.

And yet the 10th Circuit Court of Appeals thought Robertson was right on point:

"With respect to Peterson's claims against the Denver sheriff, we conclude that the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause. In Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 326, 41 L.Ed. 715 (1897), the Supreme Court stated in dicta that "the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons." Id. at 281-82, 17 S.Ct. 326. More recently, in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Court noted that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues," and explained that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions." Id. at 626, 128 S.Ct. 2783. In light of our nation's extensive practice of restricting citizens' freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment's protections." Peterson v. Martinez, 707 F. 3d 1197, 1201 - Court of Appeals, 10th Circuit (2013)

After citing Robertson, the 10th Circuit then went on to say:

"The foregoing passage is plainly obiter dicta. See Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184 (10th Cir.1995) ("Dicta are statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand." (quotation omitted)). Nevertheless, we have observed that "we are bound by Supreme Court dicta almost as firmly as by the Court's outright holdings, particularly when the dicta is recent and not enfeebled by later statements." United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir. 2007)" Peterson at 1210.

I can't speak for the others but I am anxiously waiting for you to cite a post-Heller case which supports your contentions. :sleep1:

ToldYouSo

10-16-2013, 3:12 AM

The 10th Circuit opinion in Peterson is perhaps the most on-point as regards this.

Someone with the appropriate standing needs to challenge the Denver open carry ban. It'll probably have to be someone in a state that issues carry permits on a shall-issue basis but which is not recognized by Colorado's reciprocity laws. In other words, a plaintiff who is identically situated to Gray.

There may be cleaner cases that can be brought on the subject, but I don't know of any. It would be most interesting, however, if a challenge to an open carry ban were to be brought in a jurisdiction that issues concealed carry permits on a shall-issue basis, particularly if the plaintiff were a holder of such a permit. If the 2nd Amendment truly protects open carry specifically, then such a challenge should succeed, no?

Ideally, the case should be brought by a resident of Colorado who resides in Denver. You may recall that during the oral arguments in Heller, Gura was encouraged to challenge the permit requirement which he refused to do.

The Court has long since made distinctions between permit requirements for groups of people and for permits in a commercial context but I am not aware of any precedent where the Court has held that a permit is required for a lone individual to exercise a fundamental, enumerated right. Which is what all of the concealed carry cases have argued for.

Also, Denver bans Open Carry for even those persons who have a concealed carry permit (see Sec. 38-117(b) and 38-117(f)) so it would be best brought by someone who does not have a Colorado concealed carry permit.

In short, it has to be a pure Open Carry case. One in which the Plaintiff makes the argument that concealed carry requires him to carry his handgun beneath a coat which gives an attacker an insurmountable advantage as it would take several seconds for him to retrieve his weapon to defend himself which would by then be too late. Denver is also a city where the average temperature during the summer months is over 80 degrees. Being forced to wear a coat which completely conceals his handgun also puts his life at risk from the elements.

It would also require a competent attorney and money.

Other than that, Peterson v. Martinez gives anyone with standing a great precedent to challenge any Open Carry ban in the 10th Circuit.

kcbrown

10-16-2013, 3:48 AM

Ideally, the case should be brought by a resident of Colorado who resides in Denver. You may recall that during the oral arguments in Heller, Gura was encouraged to challenge the permit requirement which he refused to do.

Sorry, but that case has already been brought and lost. See Trinen v City and County of Denver.

You'll have to somehow argue that the federal 2nd Amendment is different in terms of what it protects than the Colorado Constitution's RKBA provision, and that said difference is sufficient to yield a different outcome than that of Trinen.

Good luck with that.

Also, Denver bans Open Carry for even those persons who have a concealed carry permit (see Sec. 38-117(b) and 38-117(f)) so it would be best brought by someone who does not have a Colorado concealed carry permit.
Since permits are available to Colorado citizens on a shall-issue basis, this case would be ruled against the plaintiff on the basis of lack of standing due to lack of "injury".

In short, it has to be a pure Open Carry case. One in which the Plaintiff makes the argument that concealed carry requires him to carry his handgun beneath a coat which gives an attacker an insurmountable advantage as it would take several seconds for him to retrieve his weapon to defend himself which would by then be too late.
Such an argument would merely distract the court from the issue at hand, which is whether or not the 2nd Amendment protects open carry specifically. If it does, then no justification for exercise of the right is necessary. If it does not, then no amount of justification will prevail.

Other than that, Peterson v. Martinez gives anyone with standing a great precedent to challenge any Open Carry ban in the 10th Circuit.Plaintiff will have to be someone who cannot get a Colorado license to carry, someone who cannot carry through reciprocity, and, simultaneously, be someone who is not a prohibited person. Someone who is able to get a carry permit in his home state but who cannot carry in Denver due to lack of reciprocity is ideally situated because the fact that he has a carry permit in his home state automatically dispenses with the "prohibited person" issue. That person is an ideal candidate because the combination of laws provides no legal way for that person to exercise his fundamental Constitutional rights. And since the 10th Circuit has decided that concealed carry is not protected by the 2nd Amendment, open carry for such a person is the only way that person can exercise the right in a protected manner in Denver. Hence, the need for such a person to challenge the open carry prohibition in Denver.

If the courts are honest (and I assure you, they are not), then such a challenge will be a slamdunk for the plaintiff. In reality, I think you'll find that the 10th Circuit will rule that the prohibition stands thanks to the "intermediate scrutiny two-step", or that the 2nd Amendment doesn't apply outside the home, or some other thing. What, you expect the courts to be consistent with themselves? You silly person, you.

Trinen eliminates the possibility of the plaintiff being a Denver (or even Colorado) resident. That leaves only non-residents as potential plaintiffs.

htjyang

10-16-2013, 4:16 AM

Nothing has changed with Slaughterhouse and it's reading POI out of existence so you've made my point for me. A bigoted Democrat dominated court wiped an entire clause out of the constitution and 150 years later it's still ignored by the court because they are unwilling to overturn past precedent. The 1873 court could safely wipe out a section of the constitution because they weren't overruling past SCOTUS precedent affirming those freedoms. That's what we face again if we don't get a win before the balance on the court changes. But I can see that you are not open to facts and logic and will believe to your last day that if the "Right People" just file another 50 or 100 or 500 nearly identical cases that sometime in the next 100 years one of them just has to go our way. What did Einstein say about doing the same thing over and over and expecting different results? :rolleyes:

Einstein was an accomplished scientist of his field. Your accomplishment in the field of constitutional law is...?

You pretend as if somehow expansions in individual rights cannot be reversed. Yet confronted with the Court's easy jettisoning of the Privileges or Immunities Clause, your argument is that because there was no prior precedent. But if the meaning of the clause was so clear, why would a Court that ruled on the issue merely 5 years after it was passed decide to bury it? Furthermore, why should we think the Court would have greater deference toward a prior precedent than an amendment to the Constitution?

You also ignored the 2 precedents I mentioned where individual rights asserted by previous Courts were limited or overruled by future Courts. Just a year after Heller was decided, Justice Ginsburg was already anticipating its overthrow (http://www.volokh.com/2009/12/20/justice-ginsburg-supreme-court-may-eventually-overrule-heller/). How does that support your theory that somehow future Courts will be deferential toward precedents they disagree with?

You're not considering the possibility that a black hole will swallow the planet.

Horrible things can happen if we get out of bed in the morning (a car accident, a suicide bomber at the mall, or a million other disasters) but that doesn't mean we should never leave our beds because something awful might happen. What we do know is that minus a successful constitutional convention that the power of the federal government will continue to grow and that individual freedom will continue to shrink until we are little different from any other 3rd world people's republic or we have split into two countries. We know that because it's been the direction of the country since FDR's 1st term.

Which is assuming that a constitutional convention will restrain the federal government. What is the source of such optimism? Consider all the constitutional amendments that have been passed in recent decades. How many of them restrained federal power? Why would a convention magically defy this trend toward aggrandizing the federal government?

htjyang

10-16-2013, 4:29 AM

Please elaborate.

I see scant difference between that situation and what we have right now. See DC. And based on SCOTUS' actions to date, as well as the existence of cases such as Osterweil v Bartlett, I see no reason to believe that SCOTUS will actually support its own ruling in Heller at this point.

That means that general confiscation is a very real possibility in a few years even in the absence of a Constitutional Convention.

We already know the fruits of Heller and McDonald. Despite DC's efforts, gun registration in the city is possible, though difficult, and some people have successfully traversed that process. The result of McDonald was even more spectacular. Illinois had to improve its gun laws. Not as much as we would like, but there would have been no improvement at all without McDonald and its progeny. Despite your attempts at belittling those precedents, these are very solid accomplishments. Your complaint is essentially that the Court did not expand from those rulings. But the rulings themselves have been enforced.

The nature of liberty is that it demands that it be fought for no matter how small the chance of winning. There are few other things that qualify in the same manner.

One need not hope in order to undertake; nor succeed in order to persevere.

- Prince William of Orange

I assume, an ancestor of yours? ;)

I actually respect such sentiment. But then again, I don't think even Prince William ran around talking to his comrades about how hopeless the war against France was. Some extraordinary people can indeed persevere even when they believe the situation is hopeless, but most people can't.

kcbrown

10-16-2013, 4:33 AM

Einstein was an accomplished scientist of his field. Your accomplishment in the field of constitutional law is...?

That's irrelevant and you know it. One who is not accomplished in a field can just as easily stand on the shoulders of giants as one who is.

The quip being referred to here (which is commonly attributed to Einstein, but for which there is currently no cited evidence that he said it) is that trying the same thing over and over again while expecting the results to change is the very essence of insanity.

You pretend as if somehow expansions in individual rights cannot be reversed. Yet confronted with the Court's easy jettisoning of the Privileges or Immunities Clause, your argument is that because there was no prior precedent. But if the meaning of the clause was so clear, why would a Court that ruled on the issue merely 5 years after it was passed decide to bury it? Furthermore, why should we think the Court would have greater deference toward a prior precedent than an amendment to the Constitution?

You also ignored the 2 precedents I mentioned where individual rights asserted by previous Courts were limited or overruled by future Courts. Just a year after Heller was decided, Justice Ginsburg was already anticipating its overthrow (http://www.volokh.com/2009/12/20/justice-ginsburg-supreme-court-may-eventually-overrule-heller/). How does that support your theory that somehow future Courts will be deferential toward precedents they disagree with?
Exactly. Courts rule however they please because they have no incentive to do otherwise.

Any outcome of a Constitutional Convention is going to have to somehow deal with that.

Which is assuming that a constitutional convention will restrain the federal government. What is the source of such optimism? Consider all the constitutional amendments that have been passed in recent decades. How many of them restrained federal power? Why would a convention magically defy this trend toward aggrandizing the federal government?All true. And yet, that does not alter the fact that such a convention must be tried, for the only thing left on the table otherwise is civil war.

And trust me, civil war is the last thing you should want, because it will, firstly, almost certainly fail and, secondly, will result in unfathomable amounts of pain, suffering, death, and destruction.

You never go with the "final option" until you've run out of all other alternative options. Like it or not, a Constitutional Convention is such an alternative option. If all other peaceful options are exhausted, then that one must be tried before the ammo box is opened.

htjyang

10-16-2013, 4:41 AM

Which is your personal opinion and one that is not shared by any Federal appellate court or the California appellate courts.

When you get yourself appointed to an appellate court, come back and lecture us on your interpretation. The only opinions that matter are the ones published by the courts of appeal and they all say you don't have a clue.

I just offered an alternative interpretation of a 7th Circuit opinion that you pretended to support your case. The 7th circuit opinion itself certainly didn't ban concealed carry. As for what other circuit courts think, time will tell. Anyone who's actually familiar with the federal judiciary knows the glacial pace of their work. We're merely 3 years after McDonald. It's far too early to suggest that the verdict from the judiciary as a whole is already in.

I do have to thank you for citing the 10th circuit opinion in context, in which it conceded that its reliance on Robertson was reliance on dicta. The Supreme Court has been known to overrule its own opinions, let alone dicta. Anyone who's familiar with the Court's work would also know that most appellate court opinions that it reviews are overturned.

kcbrown

10-16-2013, 4:53 AM

We already know the fruits of Heller and McDonald. Despite DC's efforts, gun registration in the city is possible, though difficult, and some people have successfully traversed that process.

Yes, and that's now, in the face of direct SCOTUS intervention, with the directly applicable ruling freshly minted.

What makes you think the direction of things there is towards improvement, rather than away from it, with Heller as the starting point?

The result of McDonald was even more spectacular. Illinois had to improve its gun laws. Not as much as we would like, but there would have been no improvement at all without McDonald and its progeny. Despite your attempts at belittling those precedents, these are very solid accomplishments. Your complaint is essentially that the Court did not expand from those rulings. But the rulings themselves have been enforced.
That's because the 7th Circuit is the only court (aside from the Maryland district court in Woollard) in the entire nation to have taken Heller at its word. It appears to be the only circuit court that is not insistent upon eliminating the right to arms.

A Constitutional Convention would not change that (well, okay, it could, actually, and in fact the elimination of the 14th Amendment and takeover of RKBA by the states is an outcome I would expect of a Constitutional Convention). You are right in that we are better off with Heller and McDonald than without, but I'm not arguing that.

EDIT: nevertheless, you've got a good point here. But the question as regards a Concon remains whether to go straight to civil war or not.

- Prince William of Orange

I assume, an ancestor of yours? ;)

I actually respect such sentiment. But then again, I don't think even Prince William ran around talking to his comrades about how hopeless the war against France was. Some extraordinary people can indeed persevere even when they believe the situation is hopeless, but most people can't.Then we need more extraordinary people. The fight we're in requires that those fighting be made of very stern stuff, the kind that the founders of the country were made of. If we can't get people on our side to build within themselves that kind of fortitude, then we will lose.

I'm dismayed, frankly, that so few people seem to be made of what it's going to take. The majority of people here on this site should be determined to fight no matter what the predicted outcome may be. But instead, I find people both here and in other forums who are concerned about the fight for liberty appearing to be "too unwinnable".

As I said here (http://www.mdshooters.com/showpost.php?p=2782716&postcount=272):

No, what gets new people involved is the interest in securing liberty. It's the desire to do something about the fact that they're seeing their liberties disappear before their eyes.

What's with you guys? Do you think those who are interested in fighting for liberty are a bunch of children who have to be tucked in at night and told that everything will be all right?

No, they're men. Men are willing to do what's necessary no matter what.

It seems the "matriarchal society" has reached much further than one would expect...

People who wring their hands over whether or not the fight for liberty, of all things, is "winnable" (as if that really matters!) are not men, they're sheep, for it means they will accept servitude if the going gets tough enough. As I said in that thread I linked to:

Do you really think the Greatest Generation, who fought in WW2, were composed of people who had to be told that everything would be okay before they signed up to fight? Seriously? What I know of my grandparents and the people they knew is that they were willing to do whatever it took to win the fight against tyranny no matter how bleak the outlook. They didn't fight because they thought the odds favored victory, they fought because it was the right thing to fight for.

It is that which makes them the Greatest Generation.

That generation would rightly regard us as pansies. What kind of man has to be told that the fight for liberty is winnable before he will fight?? Such a person is not a man in my eyes. He is a sheep.

If most people, as you contend, would not fight if what they were fighting for appears to be unwinnable, then it's little wonder that liberty is vanishing in front of our very eyes. The kind of people who bought us the liberty we started with were, I dare say, made of much sterner stuff than that. If that's the kind of fortitude it takes to secure liberty, then most people simply don't have what it takes if you're right about them. They'd better grow a spine, and quick, if they really want their liberty back.

Paladin

10-16-2013, 4:58 AM

Do what you like but not one more cent of my money will go to any 'gun rights' organization that tries to play shot blocker or fails to open a second - unlicensed carry - line of attack. Feel free to wait 50-100 years if you're that patient and believe so strongly in their theory, but don't expect everyone else to wait while they throw the same argument at the court over and over and over and over and over and over and over and over again and again until most of us are long dead of old age.Come on, gents. Let's not get carried away. So far, SCOTUS has declined to grant cert. in a whopping TWO Carry cases: Kachalshy and now Woollard. Sure, IMHO, since they did not hold Woollard for Drake that makes it very likely they'll reject Drake too, so that will be 3 cases rejected. I doubt whether Gura and SAF, much less the NRA, are foolish enough to not reevaluate EVERYTHING to see what the problem is before filing more federal Carry lawsuits. (Richards-Peruta and Palmer are already in the pipeline, so if they get to SCOTUS and get rejected I consider them just another of the "first wave" of Carry cases that got rejected.)

The hard and cold fact is that unless we get the Supreme Court engaged in fighting for us really-really soon you can 100% count on Washington DC levels of restrictions on our rights coming to California within the next 6-10 years.True.

htjyang

10-16-2013, 5:11 AM

kcbrown,

Sir, you ask for too much.

In early May, 1940 when the German offensive against France just began (and we know how it ended), PM Churchill delivered a speech in which he said that he had "invincible confidence" in the French army and its leaders. The historian John Lukacs subsequently discovered that Churchill was lying, that while he was delivering a great, motivational speech to rally his people, his confidence in the French, far from invincible, was in fact running out. Churchill was already contemplating the possibility of a French surrender and the necessity of Britain to carry on alone. At the same time, the Australian minister to Britain was thinking the same thing and actually warned his government. Yet neither PMs Churchill or Menzies warned their peoples about the gravity of the situation.

I can't speak to American morale at the time, but my reading of British and Australian archives suggest that British morale was far more fragile than Churchill would like people to believe and both governments deliberately and repeatedly shielded their peoples from the bad news.

So it's not clear to me whether the percentage of stout-hearted individuals has declined. Even if it has, (and one might argue, especially if it has) that's no reason to spread alarmism.

For my part, the fact that there are people out there working to educate the ignorant, funding legal challenges, voting out the enemies of the Constitution (thank you Colorado!) is good enough for me. I simply don't see why it's necessary to convince everyone that We Are Doomed.

kcbrown

10-16-2013, 5:19 AM

kcbrown,

Sir, you ask for too much.

Do I? I only ask that people fight for liberty for the right reasons: because it's the right thing to do. Not for the wrong reasons (because of some notion that the fight will be easier than some threshold).

In early May, 1940 when the German offensive against France just began (and we know how it ended), PM Churchill delivered a speech in which he said that he had "invincible confidence" in the French army and its leaders. The historian John Lukacs subsequently discovered that Churchill was lying, that while he was delivering a great, motivational speech to rally his people, his confidence in the French, far from invincible, was in fact running out. Churchill was already contemplating the possibility of a French surrender and the necessity of Britain to carry on alone. At the same time, the Australian minister to Britain was thinking the same thing and actually warned his government. Yet neither PMs Churchill or Menzies warned their peoples about the gravity of the situation.

I can't speak to American morale at the time, but my reading of British and Australian archives suggest that British morale was far more fragile than Churchill would like people to believe and both governments deliberately and repeatedly shielded their peoples from the bad news.Yeah, but that's the French and the British. Bunch of pansies, them :D, as evidenced by where their countries are now as regards liberty and, especially, RKBA.

So it's not clear to me whether the percentage of stout-hearted individuals has declined. Even if it has, (and one might argue, especially if it has) that's no reason to spread alarmism.
Alarmism is telling people that things are worse than they are for the purpose of getting them worked up enough about it to do something about it. That isn't what I'm doing. I'm telling it like it is, period. I'm laying out the cold, hard reality for all to see.

What you're claiming here is tantamount to saying that people can't handle the truth.

Well, sorry, but reality is going to smack people in the face whether they know about it ahead of time or not. Would you rather that they remain blissfully ignorant of what's in front of them? Or would you rather that they know what's in front of them, so that they can prepare themselves properly for it?

For my part, the fact that there are people out there working to educate the ignorant, funding legal challenges, voting out the enemies of the Constitution (thank you Colorado!) is good enough for me.It's good enough for now, for those things. But they will need to get much, much stronger if they are to prevail against what lies ahead.

El Toro

10-16-2013, 8:14 AM

That's my feeling. I also predicted today would be a disappointment, although I don't have the same degree of legal insight you have.

When I first read your post, asking for a con-con, I thought it was an absurd proposal, because such a thing has never happened before. Well, it hasn't happened before but it has come very very close (http://en.wikipedia.org/wiki/Convention_to_propose_amendments_to_the_United_Sta tes_Constitution) on a few occasions, and it is possible that it could happen now. I've gone from thinking it's absurd to thinking, maybe it's time.

Yes. As we can see with the budget fight right now in Congress, we're at a point where there is no longer a common vision or set of values here. That's really why Congress is paralyzed. It's not because one side is being crazy, but because both sides are being sane and fighting for their values, which don't have any overlap. Maybe a con-con could help us out of this mess.

Constitutional Conventions are seriously dangerous. They cannot be held to narrow goals and everything can and will be on the table.

El Toro

10-16-2013, 8:25 AM

...Starting to wonder if a case shouldn't start by some shmuck open carrying simply because he's exercising a right that he's being denied by oppressive poll taxes.

I often wonder where we might find that 'Fall Guy'. Surely, there is the beginnings of a plan to setup such a case. There are some people who may be willing for a $$ to have their name on such a case. Find that person, fund their purchase, setup the carry situation (location, witnesses and timing) and have his attorney present to ensure their rights are preserved. Pay his bail and file the case the next day.

SCHMUCK vs. Kamela Harris

CCWFacts

10-16-2013, 8:32 AM

You're not considering the possibility that a constitutional convention will deprive gun owners in states like CA support from gun owners in other states.

Everyone knows this can happen with a con-con. One of the reasons one hasn't happened is it's not clear if they can be limited in scope. My feeling is, if one were to happen, it would address all kinds of issues and some states (take California) would be even worse off afterwards. That's fine; in such a scenario I would move. I expect I will have to anyway.

A truly pessimistic scenario will assume that in the event of a civil war, the "wrong side" will win. So again, what's the point? Why not just surrender already?

I don't think the "wrong side" would win a civil war. I think the US would end up fractured, and some states, like California, would become like 3rd world countries, and other states would become more like Europe, but with more freedom (think Switzerland). In that scenario, I would move, obviously. (Edited: if any kind of conflict like that even looks like it's beginning, many Americans, including me, would move out of the country for the duration, of course.)

ddestruel

10-16-2013, 8:44 AM

Constitutional Conventions are seriously dangerous. They cannot be held to narrow goals and everything can and will be on the table.

A state ratifying convention instead of a con con?

As was done with the 21st amendment. from what I’ve read the states couldn’t get congress to act after 13 years so they hekld a state convention, proposed and ratified their own amendment repealing the 18th. the state convention process from what i understand …. granted I’m by no means literate on this just a layman reading the little snippets I’ve found, is for states to have the ability to propose new amendments circumventing congress, where as a con con opens the door to the broader rewriting and revisiting of other amendments. from what i read of the 1933 process the states recognized that they couldn’t visit other amendments hence why they did the 21st vs rewriting the 18th. so in a sense wouldn’t the state convention be far more limited in scope and more difficult to take away liberties, as well it still would have to be sold to the public and ratified.

kcbrown

10-16-2013, 8:47 AM

Constitutional Conventions are seriously dangerous. They cannot be held to narrow goals and everything can and will be on the table.

Yes, they are.

But civil war is even more dangerous, even less likely to succeed, and far more destructive of life and property.

Why in the world would you go straight to civil war and pass up one last chance to save the republic peacefully?

kcbrown

10-16-2013, 8:55 AM

so in a sense wouldn’t the state convention be far more limited in scope and more difficult to take away liberties, as well it still would have to be sold to the public and ratified.

There is nothing that regulates or limits what can go into an amendment. As such, everything really is on the table when you're talking about the process of amending the Constitution.

As for selling it to the public, since the state governments are the entities that ratify the resulting amendment, such an amendment doesn't have to be sold to the public at all. The state governments can beg for forgiveness afterwards instead of asking for permission, and that's precisely what they'll do when faced with a power grab opportunity of this magnitude.

No, the likely outcome of a Constitutional Convention is that we will lose the 2nd Amendment and the 14th Amendment, with states going to great lengths to neuter the power of the federal government that has abused them for the past century. They will snatch the power of the federal government from it and take it for themselves.

But that's the likely outcome. There is the possibility that the states will actually behave, and will restore liberty to the citizenry. No, I don't think that's how it's going to go down. It's a very low probability option. But it's greater than zero. And when faced with the decision of rolling the dice one last time versus going straight to civil war, one would have to be insane to forego the last roll of the dice.

fizux

10-16-2013, 10:33 AM

Come on, gents. Let's not get carried away. So far, SCOTUS has declined to grant cert. in a whopping TWO Carry cases: Kachalshy and now Woollard.

Total cases granted plenary review.........93
Cases docketed during term: Total.........7509
That works out to a 1.2% chance.

Even if we get rid of the pro pers:
Petitions for certiorari granted: Paid cases.........82
Cases docketed during term: Paid cases.........1503
That works out to a 5.5% chance.

Keep in mind that the 9th Circuit has the majority of the U.S. population living under "may-issue," and the 9th still hasn't yet issued a decision on the right to bear. I suspect SCOTUS is waiting on the 9th, and the 9th has been punting and waiting for SCOTUS to grant in another case.

Woollard wasn't a death knell, just the reality of the caseload. I'm not ready to give up on the first round of carry cases.

There is nothing that regulates or limits what can go into an amendment. As such, everything really is on the table when you're talking about the process of amending the Constitution.

As for selling it to the public, since the state governments are the entities that ratify the resulting amendment, such an amendment doesn't have to be sold to the public at all. The state governments can beg for forgiveness afterwards instead of asking for permission, and that's precisely what they'll do when faced with a power grab opportunity of this magnitude.

No, the likely outcome of a Constitutional Convention is that we will lose the 2nd Amendment and the 14th Amendment, with states going to great lengths to neuter the power of the federal government that has abused them for the past century. They will snatch the power of the federal government from it and take it for themselves.

But that's the likely outcome. There is the possibility that the states will actually behave, and will restore liberty to the citizenry. No, I don't think that's how it's going to go down. It's a very low probability option. But it's greater than zero. And when faced with the decision of rolling the dice one last time and going straight to civil war, one would have to be insane to forego the last roll of the dice.

Not sure i share the pessimisim on the 2nd and 14th. These very same state governments you are thinking will concern themselves with removing the 2nd ammendment, seem to be going further to rebuff the feds than allow any more federal authority over the 2nd. If anything i would suspect an ammendment clearifying where federal authority stops on the 2nd might be more likely they'd probably clearify what the feds can and cant regulate with it. doubtful much else would come. i would expect a full on assualt on clearifying the commerce clause, strengthening of 10th ammendment and would even suspect some challenges to the 17th. i highly suspect the states would try to push the feds into a corner with a BB ammendment, as well probably some cap on service and you might see some states pushing for a cap on federal taxation system. but thats all speculation. The states appear often to be just as frustrated as thier citizens with the funny business of washing and less concerned with protecting or expanding liberty. even if the convention did run off and attemtpt to limit the 2nd ammendment 3/4's of the states would then have to ratify. the uproar in CO stands as an example of citizens anger and more than 1/4 of the states are feirly well connected to thier citizens and thier demands which in therory would mean that the 3/4 threshold wouldnt be met on the more contentious issues like 2nd ammendment modification or neutering. The choosing of state delegates would be a healthy debate and lobbied haeartily at the state level.
I believe you are correct KC it is appearing more and more that a CC may be the only recourse the states and thier citizens have left to rein in the current path of the feds. ultimately that wont do much to help CA citizens unless by some long shot 38 states agree to clearify and force the other 10-12 more oppresive states to recognize the 2nd ammendment in some strange new twist. I highly suspect the focus will be elsewhere and we can only hope that some twist in a different law/ammendment could be beneficial

Paladin

10-16-2013, 11:10 AM

Keep in mind that the 9th Circuit has the majority of the U.S. population living under "may-issue," and the 9th still hasn't yet issued a decision on the right to bear. I suspect SCOTUS is waiting on the 9th, and the 9th has been punting and waiting for SCOTUS to grant in another case.
WARNING: the following is pure, rank speculation....

My guess is that the CA9 was/is waiting to see if SCOTUS took Woollard or held it pending cert. request in Drake. IIRC, both of those are very similar cases. Since they did not take Woollard and did not even hold it for Drake, my guess is that Drake is DOA. I further guess that the CA9 figures that too. Since those are/were the only Carry cases ahead of Richards-Peruta (in heading for SCOTUS), the CA9 probably no longer has anything to wait for -- they've got the highest opinions they will get in both of those cases and Carry.

I assume CA9 will now get about the work of finishing off Richards-Peruta but NOT release it until after the cert. request deadline passes for Drake (Nov 25th or 27th, IIRC). If cert is requested (pretty much a certainty given what Gura wrote in the Woollard request), CA9 will wait until SCOTUS acts on the Drake request in Dec. Assuming a denial of cert., CA9 will then polish off their opinion and release it soon after the new year.

Thoughts?

sholling

10-16-2013, 11:37 AM

WARNING: the following is pure, rank speculation....

My guess is that the CA9 was/is waiting to see if SCOTUS took Woollard or held it pending cert. request in Drake. IIRC, both of those are very similar cases. Since they did not take Woollard and did not even hold it for Drake, my guess is that Drake is DOA. I further guess that the CA9 figures that too. Since those are/were the only Carry cases ahead of Richards-Peruta (in heading for SCOTUS), the CA9 probably no longer has anything to wait for -- they've got the highest opinions they will get in both of those cases and Carry.

I assume CA9 will now get about the work of finishing off Richards-Peruta but NOT release it until after the cert. request deadline passes for Drake (Nov 25th or 27th, IIRC). If cert is requested (pretty much a certainty given what Gura wrote in the Woollard request), CA9 will wait until SCOTUS acts on the Drake request in Dec. Assuming a denial of cert., CA9 will then polish off their opinion and release it soon after the new year.

Thoughts?
It makes sense to me. Waiting until after cert denial in Drake gives the 9th Circus the warm and fuzzy feeling of confidence to rule against us without having to worry about SCOTUS b-slapping them by taking the case and reversing them next year. Of course the 9th Circus panel just might rule in our favor but I suspect that there is a better chance of winning the lottery than getting shall-issue concealed carry out of the 9th.

speedrrracer

10-16-2013, 12:16 PM

It makes sense to me. Waiting until after cert denial in Drake gives the 9th Circus the warm and fuzzy feeling of confidence to rule against us without having to worry about SCOTUS b-slapping them by taking the case and reversing them next year.

This makes no sense to me. Why would the 9th care about being reversed within a year, but not care about being reversed after, say, 24 months?

:confused:

Face it, given the number of times the 9th gets reversed, they don't give a crap about any SCOTUS timeline.

Tincon

10-16-2013, 12:18 PM

WARNING: the following is pure, rank speculation....

My guess is that the CA9 was/is waiting to see if SCOTUS took Woollard or held it pending cert. request in Drake. IIRC, both of those are very similar cases. Since they did not take Woollard and did not even hold it for Drake, my guess is that Drake is DOA. I further guess that the CA9 figures that too. Since those are/were the only Carry cases ahead of Richards-Peruta (in heading for SCOTUS), the CA9 probably no longer has anything to wait for -- they've got the highest opinions they will get in both of those cases and Carry.

I assume CA9 will now get about the work of finishing off Richards-Peruta but NOT release it until after the cert. request deadline passes for Drake (Nov 25th or 27th, IIRC). If cert is requested (pretty much a certainty given what Gura wrote in the Woollard request), CA9 will wait until SCOTUS acts on the Drake request in Dec. Assuming a denial of cert., CA9 will then polish off their opinion and release it soon after the new year.

Thoughts?

My analysis is identical.

sholling

10-16-2013, 12:36 PM

This makes no sense to me. Why would the 9th care about being reversed within a year, but not care about being reversed after, say, 24 months?
Because 1) each rejection of cert and each year that SCOTUS fails to put teeth into the 2nd Amendment strengthens the 9th's confidence that SCOTUS has lost interest in fleshing out 2nd Amendment case law or maybe even agrees that the 2nd is toothless outside of allowing us to keep revolvers the home. 2) A year or two delay also increases the chances of a change in the make up of the court and increases the chance that SCOTUS will move left and use a 9th Circus case to repudiate Heller. Please note that rejection of cert in any and all "bear" cases also increases the 9th Circus' confidence that they can get away with ruling against us in any and all AWB challenges.

Face it, given the number of times the 9th gets reversed, they don't give a crap about any SCOTUS timeline.
That doesn't mean that they like being reversed, just that the 9th puts its political agenda well ahead of the US Constitution. In this case I suspect that the 9th would prefer to let SCOTUS speak first and then tailor their ruling in Richards to dance around the edges of the SCOTUS opinion and bless as many restrictions on our 2nd Amendment rights as they think they can get away with.

stix213

10-16-2013, 12:44 PM

It makes sense to me. Waiting until after cert denial in Drake gives the 9th Circus the warm and fuzzy feeling of confidence to rule against us without having to worry about SCOTUS b-slapping them by taking the case and reversing them next year. Of course the 9th Circus panel just might rule in our favor but I suspect that there is a better chance of winning the lottery than getting shall-issue concealed carry out of the 9th.

Yep, if they at all agree with Kcbrown's assessment that the SCOTUS is content to let carry flap in the wind, the 9th will rule however they want, justify their ruling with the flimsiest of citings, and assume the SCOTUS will be fine with it. It will at least be entertaining to see how the 9th ignores that the district courts basically ruled that there is a right to bear arms, but it was satisfied by UOC which is now gone.

Luieburger

10-16-2013, 1:00 PM

Looks like we have to plan for the long game. The short game isn't looking too good for us. Hopefully we'll get SCOTUS to take up and confirm our rights with the cases we have in the 9th, but I'm not holding my breath.

It's 2013, and it's never too early to start campaigning for Rand Paul.

Rand Paul 2016. Do it for the court balance.

sholling

10-16-2013, 1:16 PM

It will at least be entertaining to see how the 9th ignores that the district courts basically ruled that there is a right to bear arms, but it was satisfied by UOC which is now gone.
No problem, they may simply rule that may-issue licensed concealed carry satisfies the right, or may just reject carry as a right altogether. Never underestimate the creativity of a Progressive judge looking to disarm the public. ;)

sholling

10-16-2013, 1:27 PM

Looks like we have to plan for the long game. The short game isn't looking too good for us. Hopefully we'll get SCOTUS to take up and confirm our rights with the cases we have in the 9th, but I'm not holding my breath.

It's 2013, and it's never too early to start campaigning for Rand Paul.

Rand Paul 2016. Do it for the court balance.
Rand Paul would be my first choice with Ted Cruz a close second only because Cruz is a far better debater and is far less likely to step on his **** in a debate or hostile interview. Perhaps a Cruz/Paul ticket.

But that's further out than recruiting and supporting an electable pro 2nd Amendment rights (small L) libertarian Republican to run for Governor in 2014. Without a pro rights Republican Governor we can count on a dozen more anti-rights bills per year being signed into law in each and every one of the next 5 years.

stix213

10-16-2013, 1:31 PM

Rand Paul would be my first choice with Ted Cruz a close second only because Cruz is a far better debater and is far less likely to step on his **** in a debate or hostile interview. Perhaps a Cruz/Paul ticket.

But that's further out than recruiting and supporting an electable pro 2nd Amendment rights (small L) libertarian Republican to run for Governor in 2014. Without a pro rights Republican Governor we can count on a dozen more anti-rights bills per year being signed into law in each and every one of the next 5 years.

I have my checkbook ready to support a Cruz/Paul ticket!

fizux

10-16-2013, 1:51 PM

Thoughts?
Yeah, I'm thinking along the same lines. There is a small chance that the 9CA panel reads the Woollard tea leaves as an indicator that Drake will be DOA, and thus they will go ahead and publish Richards, Peruta, and Baker without waiting for the results of the SCOTUS conference in Drake. Then again, that is pure optimism with a snowball's chance, and I realistically expect to wait 26+ days after final disposition in Drake.

I could see the 9CA panel remanding Baker for some administrative reason just to clear it off the docket for further delay at the district level until at least a decision on cert in Richards/Peruta.

If Alan Gura's hair isn't completely on fire with other stuff right now, I could see him wanting to prep his Drake cert petition well in advance of the deadline just to speed things up, but the realities of running a law practice usually prohibit ever getting that far ahead. Except for Peruta/Richards, I don't think there is a whole lot of circuit level carry law in the pipeline for the rest of the year.

Tincon

10-16-2013, 2:08 PM

It will at least be entertaining to see how the 9th ignores that the district courts basically ruled that there is a right to bear arms, but it was satisfied by UOC which is now gone.

My guess is they will apply intermediate scrutiny. Then it's as easy as CCW restriction (including may issue) furthers an important government interest (reducing violence) in a way that is substantially related to that interest. All they need to say is, oh look in Japan, England, Pleasantville, Never Never Land, they have similar gun laws and less crime and that could work here too.

Tincon

10-16-2013, 2:14 PM

Yeah, I'm thinking along the same lines. There is a small chance that the 9CA panel reads the Woollard tea leaves as an indicator that Drake will be DOA, and thus they will go ahead and publish Richards, Peruta, and Baker without waiting for the results of the SCOTUS conference in Drake. Then again, that is pure optimism with a snowball's chance, and I realistically expect to wait 26+ days after final disposition in Drake.

I thought about that too, but I don't think it will happen just because the scrutiny issue could make them look pretty foolish if they get it totally wrong so soon before a potential decision. Then again, maybe they don't care. Hard to say.

I could see the 9CA panel remanding Baker for some administrative reason just to clear it off the docket for further delay at the district level until at least a decision on cert in Richards/Peruta.

That won't be hard to find.

kcbrown

10-16-2013, 4:14 PM

I thought about that too, but I don't think it will happen just because the scrutiny issue could make them look pretty foolish if they get it totally wrong so soon before a potential decision. Then again, maybe they don't care. Hard to say.

Since when has the 9th Circuit actually cared about "looking foolish"?

In any case, the panel is headed up by Diarmuid "strict scrutiny is actually the same as rational basis when applied to the 2nd Amendment" (http://www.calguns.net/calgunforum/showpost.php?p=6348434&postcount=287)O'Scannlain, so a decision against us in the 9th Circuit is essentially a given.

Paladin

10-16-2013, 4:26 PM

Some more musings:

* Could we get RBearA via a circuitous route: get strict scrutiny in Jackson or Kwong first, and then take that an apply it against May Issue?

* To those who are depressed right now: remember, SCOTUS could have easily taken Kachalsky or Woollard and ruled against us if they wanted. They did not. They simply did not take either case. There a a ton of possible reasons why they did that.

* CA9 might rush the opinion out right before the holidays, just like SCOTUS waited until the last day to release Heller and McDonald -- so that they'll be out of town when everyone gets happy/mad. (Does CA9 take a Christmas vacation?) The holidays would also mean that most people are preoccupied w/their vacations, trips, shopping, family/friend visits, etc than the news. But CA9 would have to have everything pretty much ready before SCOTUS decided whether to grant cert. in Drake, and thus be very confident Drake is DOA. So I think this is possible, but unlikely.

* Expect the loser of Richards-Peruta to request a rehearing/en banc review. If our side loses, we'd request that ASAP. (Scalia and Thomas aren't getting any younger....) Guess we'd get en banc, but not by the entire CA9, just a panel thereof. Guess, what, 6-9 months for them to decide? That would put us in fall to winter 2014 for the loser to ask for cert. If SCOTUS took it, would they take it that late in their term? Hold it over for the next term? If SCOTUS takes it, they might not release their opinion on Richards-Peruta might not until summer 2016.... Ugh!

* All 58 CA counties' sheriffs are up for re/election in 2015(?). If we could have an impact on tipping an anti county (or counties) to pro, that would be worth trying. IIRC, the deadline for sheriffs candidates is in Feb and the primary is in June w/runoff in Nov if necessary. No time to waste if CGN/CGF leadership thinks this is worth trying.

kcbrown

10-16-2013, 4:44 PM

* To those who are depressed right now: remember, SCOTUS could have easily taken Kachalsky or Woollard and ruled against us if they wanted. They did not. They simply did not take either case. There a a ton of possible reasons why they did that.

But not many that make sense after accounting for the other options available to SCOTUS.

The possible reasons that are left after accounting for those other options are all bad for us.

You shouldn't attempt to paint a picture that's rosier than it really is. It just makes us look like idiots (remember Gene insisting that we'd get "carry for all at most 36 months after McDonald"? That prediction trashed his credibility with respect to such prognostications). The stupider we look, the harder it will be to get support for our cause.

* Expect the loser of Richards-Peruta to request a rehearing/en banc review. If our side loses, we'd request that ASAP. (Scalia and Thomas aren't getting any younger....) Guess we'd get en banc, but not by the entire CA9, just a panel thereof. Guess, what, 6-9 months for them to decide? That would put us in fall to winter 2014 for the loser to ask for cert. If SCOTUS took it, would they take it that late in their term? Hold it over for the next term? If SCOTUS takes it, they might not release their opinion on Richards-Peruta might not until summer 2016.... Ugh!
We'd be idiots to request an en banc hearing in light of the danger of losing one of the Heller 5 to a "progressive" replacement, especially since the chance that an en banc review will wind up with a real win for us (as opposed to a useless token win with so many poison pills that it makes the current state of affairs look good. See the O'Scannlain "strict scrutiny" link (http://www.calguns.net/calgunforum/showpost.php?p=6348434&postcount=287) for an example of such) is quite small.

Paladin

10-16-2013, 5:07 PM

But not many that make sense after accounting for the other options available to SCOTUS.

The possible reasons that are left after accounting for those other options are all bad for us.

You shouldn't attempt to paint a picture that's rosier than it really is. It just makes us look like idiots Just saying don't make things out as worse than they are either. Like I said, if the 4 antis wanted to take the case so that they'd get a smack down in writing, they could have granted cert. They didn't. No combo of 4 did.

We'd be idiots to request an en banc hearing in light of the danger of losing one of the Heller 5 to a "progressive" replacement, especially since the chance that an en banc review will wind up with a real win for us (as opposed to a useless token win with so many poison pills that it makes the current state of affairs look good. See the O'Scannlain "strict scrutiny" link (http://www.calguns.net/calgunforum/showpost.php?p=6348434&postcount=287) for an example of such) is quite small.The only way to SCOTUS is thru a rehearing/en banc request.

Sounds like you're saying if we lose at CA9, lick our wounds, quite while we're behind. Stop all carry cases at the earliest loss (district court for Palmer?), because 1 or more of the Heller 5 may die before it gets to SCOTUS. Thus, don't start any new approaches to Carry (e.g., unlicensed LOC), in fed courts either.

If a Dem wins in 2016, they'll load the Court w/antis, so we won't be able to bring any federal lawsuits from at least 2017-2021. Same if they get reelected (2021-2025).

Is that what you're suggesting?

kcbrown

10-16-2013, 5:30 PM

Just saying don't make things out as worse than they are either. Like I said, if the 4 antis wanted to take the case so that they'd get a smack down in writing, they could have granted cert. They didn't. No combo of 4 did.

That's because the lower courts are already accomplishing the same thing. What's the point of upholding a law that has already been upheld by the lower courts, except to force other lower courts to do the same? That would accomplish nothing.

The 7th Circuit is the sole exception to this, and a "may issue" setup hasn't actually been tested there yet. Moore struck down a blanket prohibition on all carry. And while the discussion in that decision suggests that it would also strike down a "may issue" setup, the only way to really know that would be for such a law to be written and then challenged.

Finally, actually limiting the 2nd Amendment to the home at the national level has the real risk of kicking off a civil war, because like it or not, the 2nd Amendment has immense symbolic value to a lot of the nation, even if it is rarely heeded in practice.

So: lots of potential downside for upholding carry bans, no real upside, and the same result is being generated already. Why in the world would SCOTUS decide to uphold carry bans under those conditions?

That is why it hasn't taken one of the cases. Conversely, if there were sufficient votes to strike carry bans, the Court would have taken one of the cases. That it hasn't is, in light of the above, proof that, as of now, we're not getting bear in public from the Supreme Court.

I see no flaws in the above logic, nor do I see any errors in any of the assumptions upon which the logic is based. It looks unassailable to me.

The only way to SCOTUS is thru a rehearing/en banc request.
Ah, I was under the impression that one could go straight to SCOTUS.

Sounds like you're saying if we lose at CA9, lick our wounds, quite while we're behind. Stop all carry cases at the earliest loss (district court for Palmer?), because 1 or more of the Heller 5 may die before it gets to SCOTUS. Thus, don't start any new approaches to Carry (e.g., unlicensed LOC), in fed courts either.
Nope. We need to continue to bring carry cases. I was suggesting avoiding en banc because I was under the impression that we could go straight to SCOTUS. If that's not possible, then en banc it is.

We need to continue to bring carry cases, but it's now time to start changing their character. In particular, it's time to start bringing challenges to open carry bans.

But it's also time to start looking past the courts for other options (e.g., Constitutional Convention), because I think it's become clear that we'll get no relief in the courts, because the courts abhor the right to keep and bear arms as much as the governments do, and they're perfectly happy and willing to rule as they please no matter what other courts, even those above them, say. This is precisely the thing I warned everyone here about several years ago. Those warnings were laughed at. Who's laughing now?

If a Dem wins in 2016, they'll load the Court w/antis, so we won't be able to bring any from at least 2017-2021. Same if they get reelected (2021-2025).
Exactly. And I fully expect the Dems to win in 2016, because I expect the Republicans to run yet another candidate whose only real attribute is that he has a pulse.

Thus, the necessity to flood the system with carry cases of all manner, in an attempt to get SCOTUS to bite. It almost certainly won't work (for reasons described above), but it must be tried.

mrdd

10-16-2013, 6:16 PM

So: lots of potential downside for upholding carry bans, no real upside, and the same result is being generated already. Why in the world would SCOTUS decide to uphold carry bans under those conditions?

That is why it hasn't taken one of the cases. Conversely, if there were sufficient votes to strike carry bans, the Court would have taken one of the cases. That it hasn't is, in light of the above, proof that, as of now, we're not getting bear in public from the Supreme Court.

I see no flaws in the above logic, nor do I see any errors in any of the assumptions upon which the logic is based. It looks unassailable to me.

Yes, I think you are correct. We have lost one of the Heller / McDonald five as far as carry is concerned. This occurred to me when I read that Woollard was denied cert.